Criminal Law - Villanova

Volume 26 Issue 3 Article 5

1981

Criminal Law Criminal Law

Various Editors

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1980-81]

Criminal Law

CRIMINAL LAW-CONTEMPT-DISTINGUISHING FACTOR BETWEEN

CIVIL AND CRIMINAL CONTEMPT IS THE PURPOSE FOR

WHICH SENTENCE IS IMPOSED.

United States v. North (1980)

William Eyler was indicted along with Irving North for his partici-pation in a bank fraud scheme.1 Having pleaded guilty to a numberof charges in the indictment, Eyler was serving two concurrent sentencesfor his offenses when he was subpoenaed to testify at North's trial.2

Although he had previously agreed to cooperate with the government,Eyler refused to testify against North, invoking his fifth amendmentprivilege against self incrimination.8 Eyler was granted "use" im-munity 4 and the trial court ordered him to testify, advising him that,should he refuse, he would be held in contempt. 5 Eyler was furtheradvised that he could purge himself of this contempt by thereafter testi-fying.6 Having been afforded additional opportunities to testify 7 and,on each occasion, having been warned that a contempt sentence wouldinterrupt his present concurrent criminal sentences, s Eyler persisted inhis refusal to testify.9 As a result, he was held in contempt and given a

1. United States v. North, 621 F.2d 1255, 1257 (3d Cir. 1980) (en banc).2. Id. Eyler had been sentenced on his guilty plea to concurrent sen-

tences of three-and-one-half and four years. id.3. Id. The privilege against self incrimination is afforded by the fifth

amendment to the United States Constitution which provides that no personshall "be compelled in any criminal case to be a witness against himself." U.S.CONsT. amend. V.

4. 621 F.2d at 1257. The statutory provision under which Eyler wasgranted immunity provided that once immunity had been granted,

the witness may not refuse to comply with the order on the basis ofhis privilege against self incrimination; but no testimony or otherinformation compelled under the order . . . may be used against thewitness in any criminal case, except a prosecution for perjury, givinga false statement, or otherwise failing to comply with the order.

18 U.S.C. § 6002 (1976). For the statutory provisions relating to the procedureto be followed in granting use immunity, see id. § 6003.

5. 621 F.2d at 1257.6. Id. Eyler was advised by the trial judge of his opportunity to purge

himself of his contempt each time he refused to testify. Id.7. Id. Eyler refused to testify once on July 12 and twice on July 13, and

was informed on each occasion that he could purge himself of the contemptby testifying. Id.

8. Id.9. Id. The court, before imposing the contempt sentence, stated to Eyler:

"Now, you can purge yourself of that contempt by now testifying; but, persist-ing in the refusal, we are through with the proceeding and we are ready toproceed with the trial." Id. at 1260. (emphasis by the court). Counsel for

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Editors: Criminal Law

Published by Villanova University Charles Widger School of Law Digital Repository, 1981

VILLANOVA LAW REVIEW

six-month sentence to commence immediately, after which the runningof his current prison terms would resume.' 0

After the conclusion of North's trial," Eyler filed a motion for re-duction of sentence, 12 claiming that his contempt was civil in natureand, thus, that his sentence must terminate simultaneously with the endof North's trial."3 This motion was denied by the district court.14 Onappeal, the United States Court of Appeals for the Third Circuit, sittingen bane,1" affirmed the order of the district court, holding that a con-

Eyler, at oral argument, emphasized that Eyler was given the opportunity tobe heard on the charges and that he was aware of the contempt proceeding.Id. at 1263 n.12. For a discussion of the right of a contemnor to speak in hisown behalf and in mitigation of sentence on the contempt charge, see note38 and accompanying text infra.

10. 621 F.2d at 1257. At the time of Eyler's citation for contempt, thetrial court did not specify whether Eyler was being held in civil contempt orin criminal contempt. Id. at 1260. The court's minute entry and formalorder, dated July 13, 1979, merely indicate that Eyler was sentenced to a fixedterm of six months in jail with the provision that this sentence interrupt hiscurrent sentences. Id.

After the district court imposed this sentence, Eyler's counsel requested aclarification of whether the court's order required that Eyler be incarceratedlocally during the six-month period or permitted him to be returned to thefacility at Morgantown, West Virginia, where he was serving his prior sentence.Id. at 1260-61. The district court directed that Eyler be returned to Morgan-town with "the only effect of this contempt sentence . . . be[ing] that hissentence will be lengthened accordingly." Id. at 1261. For a discussion ofthe district court's failure to characterize the nature of the contempt citation,see notes 55-63 and accompanying text infra. For a discussion of the sig-nificance placed by the Third Circuit on the district court's willingness toreturn Eyler to Morgantown, see note 63 and accompanying text infra.

11. North's trial proceeded without Eyler's testimony and concluded onJuly 17, four days after Eyler's last refusal to testify. 621 F.2d at 1257.

12. Id. Eyler moved the court to vacate his sentence under the provi-sions of rule 35 of the Federal Rules of Criminal Procedure, which providesfor the correction of an illegal sentence and which also provides that "thecourt may reduce a sentence within 120 days after the sentence is imposed."FED. R. CRIM. P. 35(b).

13. 621 F.2d at 1257. Eyler's claim for a reduction in sentence was basedupon a statutory provision for civil contempt, which provides, in pertinentpart:

(a) Whenever a witness in any proceeding before or ancillary to anycourt or grand jury of the United States refuses without just causeshown to comply with an order of the court to testify . . . the court,upon such refusal, . . . may summarily order his confinement at asuitable place until such time as the witness is willing to give suchtestimony . . . No period of such confinement shall exceed the lifeof -(1) the court proceeding, or(2) the term of the gand jury, including extensions, before which suchrefusal to comply with the court order occurred, but in no event shallsuch confinement exceed eighteen months.

28 U.S.C. § 1826 (1976). It was Eyler's contention that since North's trial hadended, this section required that his six-month sentence be vacated. 621 F.2dat 1256-57.

14. 621 F.2d at 1257.15. The case was originally heard by Chief Judge Seitz, and Circuit Judges

Garth and Sloviter. The court ordered a rehearing en banc and the case was

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Villanova Law Review, Vol. 26, Iss. 3 [1981], Art. 5


THIRD CIRCUIT REVIEW

tempt sentence imposed against a recalcitrant trial witness for the pur-pose of punishing him for his refusal to testify is criminal in nature.United States v. North, 621 F.2d 1255 (3d Cir. 1980) (en banc).

The United States Supreme Court first examined the distinctionbetween criminal and civil contempt in Gompers v. Bucks Stove & RangeCo.16 In Gompers, the defendant labor organizers had been foundguilty of contempt for failure to obey an injunction, 17 and were sen-tenced to prison terms.18 On the defendants' appeal, the SupremeCourt found that the sentence imposed had been for civil rather thancriminal contempt.' 9 In so finding, the Court outlined the differencesbetween civil and criminal contempt, stating that

[i]t is not the fact of punishment, but rather its character andpurpose that often serve to distinguish between the two classesof cases. If it is for civil contempt the punishment is remedial,and for the benefit of the complainant. But if it is for criminalcontempt the sentence is punitive, to vindicate the authorityof the court.2 0

Expressing the "purpose test" for distinguishing between the two classesof contempt, the Court stated that the imposition of a civil contemptsentence is intended to coerce the defendant to do what he had refusedto do, while a criminal contempt sanction operates not as a coerciveremedy, but solely as punishment for the completed act of disobedience. 21

In Shillitani v. United States,22 the Supreme Court, discussed thiscorrelation between the purpose for which a contempt sentence is im-posed and the nature of the contempt sentence.23 The petitioner in

reheard by Chief Judge Seitz, and Circuit Judges Aldisert, Adams, Gibbons,Rosenn, Weis, Garth, Higginbotham, and Sloviter. Judge Garth wrote theopinion of the court. Chief Judge Seitz filed a dissenting opinion, in whichJudge Higginbotham joined. Judge Aldisert also wrote a dissenting opinion.

16. 221 U.S. 418 (1911).17. Id. at 435. The District of Columbia Supreme Court had issued an

injunction restraining the defendants from boycotting the complainant com-pany, or from publishing or otherwise making any statements that the com-plainant was, or had been, on the "unfair" or "we don't patronize" lists pub-lished by the American Federation of Labor. Id. at 436.

18. Id. at 425. The three defendants were sentenced to terms of sixmonths, nine months, and twelve months respectively. Id.

19. Id. at 441-52.20. Id. at 441 (emphasis added).21. Id. at 442-43. For a discussion of the characteristics of criminal and

civil contempt sentences, see notes 27-29 and accompanying text infra. Com-pare Southern Ry. v. Lanham, 403 F.2d 119 (5th Cir. 1968) (contempt sentenceimposing unconditional fine payable to court for appellant's "willful and wantondisregard" of court's order to produce documents is criminal in nature) withMcCrone v. United States, 307 U.S. 61 (1939) (contempt sentence ordering thatdefendant be held in jail until he purges himself of contempt by obeyingorder to testify is civil).

22. 384 U.S. 364 (1966).23. Id. at 368.

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Shillitani refused to testify before a grand jury,24 and was held in con-tempt and sentenced to a prison term, 25 subject to the condition that hissentence would be terminated if he testified.26 The Supreme Court heldthat "the conditional nature of the sentence" rendered the action a civilcontempt proceeding.27 The Court further stated that, although anyimprisonment has both punitive and deterrent effects, a contempt sen-tence must be viewed as remedial, and therefore civil in nature, ifrelease is conditioned on the contemnor's willingness to testify.28 How-ever, where a fixed sentence has been imposed which does not providethe contemnor with an opportunity to terminate his sentence by purginghimself of the contempt, it has been held that the contempt is criminalin nature.2 9

In further distinguishing between civil and criminal contempt, theShillitani Court stated that before a judge resorts to criminal sanctions,he should first consider the feasibility of coercing testimony through theimposition of civil contempt sanctions and determine that the civilremedy would be inappropriate.3 0 The Supreme Court stated, more-over, that a court must have "good reason" to believe that the civil

24. Id. at 365-66. Petitioner was granted immunity and ordered to answercertain questions. Id. at 366.

25. Id. at 366. Petitioner was sentenced to a two-year prison term. Id.Petitioner was not indicted or given a jury trial. Id. at 365. He asserted thatthe absence of indictment and jury trial made his sentence unconstitutional.Id. at 366.

26. Id. at 365.

27. Id. Since the contempt proceeding was determined to be civil ratherthan criminal, indictment or trial by jury was not constitutionally required.Id.

28. Id. at 370. See also Skinner v. White, 505 F.2d 685 (5th Cir. 1974).The Skinner court stated that a judgment of civil contempt is conditionaland may be lifted if the contemnor purges himself of the contempt. Id. at688-89. The court further stated that "since sanctions imposed in civil con-tempt proceedings must always give the alleged contemnor the opportunity tobring himself into compliance [with the prior court order], the sanction cannotbe one that does not come to an end when he repents his past conduct andpurges himself." Id. at 689, citing Lance v. Plummer, 353 F.2d 585 (5thCir. 1965).

29. See United States v. Liddy, 510 F.2d 669 (D.C. Cir. 1974) (en banc),cert. denied, 420 U.S. 980 (1975). The Liddy court held that a conviction forcriminal contempt results in a fixed sentence that must be served regardlessof whether the contemnor subsequently purges his contempt by complyingwith the court order. 510 F.2d at 675-76. The court stated that, as a resultof the fixed nature of a criminal contempt sentence, "the coercive elementinherent in civil contempt is lost when resort is had to criminal contempt."Id. at 676.

30. 384 U.S. at 371 n.9. The Supreme Court noted that the requirementthat the court determine the feasibility of coercing testimony by imposing civilsanctions before imposing a criminal contempt sentence is dictated by theprinciple that a court should exercise "the least possible power adequate tothe end proposed." Id. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204,(1821).

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contempt sanction would be inappropriate. 1 In United States v.Wilson,32 the Supreme Court found that the "good reason" requirement,enunciated in Shillitani, was satisfied by the fact that the contemnorswere already incarcerated at the time of their contemptuous acts. 8 InUnited States v. DiMauro,8 4 the Eighth Circuit determined that a crimi-nal contempt sentence had been properly imposed, pursuant to theShillitani requirements, for the defendant's refusal to testify because thetrial record revealed that the judge had considered and rejected thepossibility of civil contempt. 8 It was the belief of the Eighth Circuitthat Shillitani had not diminished the historic powers of a court topunish criminally for the refusal to testify without first having to resortto civil sanctions.8 6

The defendant in a criminal contempt proceeding is entitled to anumber of due process protections which are not afforded in a civilcontempt proceeding.8 7 Before an individual may be found to be incriminal contempt and consequently sentenced, he must be given reason-able notice of the specific charges and an opportunity to respond andspeak in his own defense and in mitigation of punishment. 8 However,summary disposition, as opposed to disposition upon notice and hearing,is appropriate for "direct contempt" as when the contempt consists of arefusal of a trial witness to testify after having been granted immunity.8 9

31. 884 U.S. at 371 n.9.32. 421 U.S. 309 (1975).33. Id. at 317 n.9. The Court found "good reason" to impose criminal

sanctions because the threat of civil contempt would provide little incentivefor the contemnors to testify due to their current incarceration. Id.

34. 441 F.2d 428 (8th Cir. 1971).35. Id. at 435. It was asserted by the defendant that Shillitani prohibited

a court from resorting to criminal contempt sanctions without first attemptingto coerce the testimony of a recalcitrant witness by imposing a civil contemptsanction. Id. at 432.

36. Id. at 434-35, citing Harris v. United States, 382 U.S. 162 (1965);Brown v. United States, 359 U.S. 41 (1959) (court had imposed criminal con-tempt sanctions without first resorting to civil sanctions).

37. See notes 38-40 and accompanying text infra.38. See Taylor v. Hayes, 418 U.S. 488, 498-99 (1974). The right to allo-

cution on the charges allows the defendant the opportunity to be heard indefense of his actions before sentence is imposed and the Court analogizedthis right to the right to respond to the charges in a contempt proceeding.Id. at 498. For the requirements pertaining to notice and hearing in a crimi-nal contempt case, see FED. R. CRIM. P. 42(b).

39. See United States v. Wilson, 421 U.S. at 315-19. The right to respondto the charges, however, has been recognized by the Supreme Court as attach-ing in cases in which punishment was imposed summarily as well as in noticeand hearing cases. See Groppi v. Leslie, 404 U.S. 496 (1972) (contemnor nor.mally has been given opportunity to speak on his own behalf where punish-ment is imposed summarily).

Rule 42 of the Federal Rules of Criminal Procedure provides for dueprocess protection to defendants in criminal contempt cases:

A criminal contempt may be punished summarily if the judge certi-fies that he saw or heard the conduct constituting the contempt and

1980-81]

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In addition, the Supreme Court has mandated that "sentences exceedingsix months for criminal contempt may not be imposed absent a jurytrial or waiver thereof." 40 Finally, as to when a contempt sentenceshould commence running in those cases where the contemnor is cur-rently serving a prison sentence, eight courts of appeals have held that acivil contempt sentence may interrupt a previously imposed federalprison sentence.41 The courts have stated that civil confinement couldhave no coercive effect if credit were given against the original sentencefor time spent in confinement for the contempt offense.42

Although generally, civil contempt sentences, imposed for the pur-pose of coercing testimony, result in conditional sentences while criminalcontempt sentences, imposed for the purpose of punishing the con-temnor, result in unconditional sentences, some courts have imposedsentences which combine elements of both civil and criminal contempt.43

that it was committed in the actual presence of the court. The ordershall recite the facts and shall be signed by the judge and enteredof record.

FED. R. CRIM. P. 42(a). The rule further provides that "a criminal contemptexcept as provided in sub-division (a) of this rule shall be prosecuted on no-tice." FED. R. CRIM. P. 42(b).

40. Cheff v. Schnackenberg, 384 U.S. 373, 380 (1966). The Supreme Courtexercised its supervisory power by requiring a jury trial in criminal contemptcases where the sentence exceeds six months. Id. This right to trial by juryexists only in cases of criminal contempt. See United States v. DiMauro, 441F.2d 428 (8th Cir. 1971) (jury trial is obviously mark of criminal contemptconviction). The Cheff rule was raised to the level of a constitutional require-ment in Codispoti v. Pennsylvania, 418 U.S. 506 (1974).

41. See United States v. Dien, 598 F.2d 743 (2d Cir. 1979); In re Garmon,572 F.2d 1373 (9th Cir. 1978); In re Grand Jury Investigation (Hartzell), 542F.2d 166 (3d Cir. 1976); In re Grand Jury Proceedings (Marshall), 532 F.2d410 (5th Cir. 1976); Martin v. United States, 517 F.2d 906 (8th Cir. 1975);Williamson v. Saxbe, 513 F.2d 1309 (6th Cir. 1975); United States v. Liddy,510 F.2d 669 (D.C. Cir. 1974) (en banc), cert. denied, 420 U.S. 980 (1975);Anglin v. Johnston, 504 F.2d 1165 (7th Cir. 1974). The practice of inter-rupting a prison term to impose a civil contempt sentence has the effect ofextending the running of the original criminal sentence. The power of thetrial judge to modify a previously imposed sentence was discussed by theSupreme Court in United States v. Addonizio, in which the Court stated that:

Once a sentence has been imposed, the trial judge's authority to modifyit is also circumscribed. Federal Rule Crim. Proc. 35 now authorizesDistrict Courts to reduce a sentence within 120 days after it hasbeen imposed or after it has been affirmed on appeal. The time pe-riod, however, is jurisdictional and may not be extended.

442 U.S. 178, 189 (1979).42. See In re Grand Jury Investigation (Hartzell), 542 F.2d 166, 169

(3d Cir. 1976); United States v. Liddy, 510 F.2d 669, 675 (D.C. Cir. 1974) (enbanc), cert. denied, 420 U.S. 980 (1975). It should be noted that the casesin which the courts of appeals have accepted the practice of interrupting acurrent prison term for a contempt sentence are all cases dealing with civilcontempt.

43. See notes 44-53 and accompanying text infra.

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In Reina v. United States, 44 the United States Supreme Court affirmeda "hybrid" 45 criminal contempt sentence which consisted of a term oftwo years of imprisonment with a sixty-day period in which the con-temnor could purge himself of the contempt by testifying.46 Thesentence imposed in Reina demonstrates the characteristics of a "hybrid"criminal contempt sentence: a fixed prison term, with the provision thatthe contemnor has a specified period in which he can purge himself ofthe contempt.47 However, the propriety of using this "hybrid" sentenc-ing technique is in doubt following the comments made by the SupremeCourt in Shillitani. In that case, the Court observed that a "court mayimpose a determinate sentence which includes a purge clause. Thistype of sentence would benefit an incorrigible witness. It raises noneof the problems surrounding a judicial command that unless the witnesstestifies within a specified time he will be imprisoned for a term ofyears." 48 The Supreme Court went on, however, to cite Reina as anexample of the type of sentence which, in its view, raised problems, thenature of which the Court failed to articulate.49

In addition to the expressly conditional sentence approved in Reina,the Supreme Court, in United States v. Wilson,50 approved a fixedcriminal contempt sentence which provided that the contemnor's subse-quent willingness to testify would be taken into account when consider-

44. 364 U.S. 507 (1960).45. This is a term used by the Third Circuit in North to describe contempt

sentences containing characteristics of both civil and criminal contempt. See621 F.2d at 1264.

46. 364 U.S. at 514. Although the Supreme Court affirmed this "hybrid"criminal contempt sentence, the Court explicitly declined to address the otherissues which this type of sentence might present because the issues were notraised by the parties. Id. at 515.

47. The fixed term of the sentence is a characteristic of criminal contempt,whereas the opportunity for the contemnor to purge himself of his contemptis present in a civil contempt sentence. See notes 24-29 and accompanyingtext supra.

48. Shillitani v. United States, 384 U.S. at 370 n.6, citing Reina v. UnitedStates, 364 U.S. 507 (1960). It has been noted by one commentator that "[t]hedifficulty in determining whether Shillitani precludes all fixed criminal sen-tences with a purge clause is compounded by the Court's failure to articulateits objections to this type of sentence." Kuhns, The Summary ContemptPower: A Critique and a New Perspective, 88 YALE L.J. 39, 115 (1978). Kuhnsposits that the only possible objection to the "hybrid" criminal contempt sen-tence is that some contemnors may not yield to the coercion of a conditionalfixed sentence and a fixed sentence based solely or primarily on a coercivepurpose may be excessive. Id. at 116. Kuhn suggests that the fear that judgesmay impose disproportionately severe fixed conditional sentences may besufficient reason to eliminate this sentencing option and adopt statutes whichpermit conditional fixed sentences of a limited duration. Id. at 116-17 n.446,citing MIcH. COMP. LAws ANN. § 767-19c (Supp. 1978) (one year imprisonmentand up to ;10,000 fine subject to recalling of grand jury and commutation of sen-tence upon witness's agreeing to purge himself of contempt).

49. 384 U.S. at 370 n.6.50. 421 U.S. 309 (1975). See notes 32-33 and accompanying text supra.

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ing a motion for reduction of sentence.51 The Eighth Circuit, in UnitedStates v. DiMauro, 2 imposed a sentence similar to that imposed inWilson, in that the sentencing judge made it clear that the defendants'

subsequent willingness to testify would have a bearing on their motionsfor reduction of sentence.5 3

Against this background, Judge Garth, writing for the majority inNorth, began his analysis of the nature of the contempt sentence im-posed upon Eyler by examining the record of the trial proceedings.64Judge Garth concluded that it was the intent of the district court toimpose a criminal, as opposed to a civil, contempt sentence,5 5 basing hisdetermination on three factors documented in the trial court's record.56

First, the majority noted that Eyler's counsel raised the issue of trial byjury for a contempt sentence in excess of six months, a considerationwhich is only present in a criminal contempt case. 57 Second, the major-ity asserted that a "fair reading" of the district judge's advice to Eyleris demonstrative of an intent to impose an unconditional sentence,58 acharacteristic of criminal contempt.59 Finally, the majority noted that

51. 421 U.S. at 312. The defendant was sentenced to a six-month prisonterm, with the sentencing judge making it clear that he would consider reduc-ing the sentence, or eliminating it completely, if the defendant testified. Id.

52. 441 F.2d 428 (8th Cir. 1971). See notes 34-36 and accompanying textsupra.

53. 441 F.2d at 431. The defendants were sentenced to three year prisonterms, with the provision that if they testified prior to the discharge of thegrand jury or the expiration of the 120 day period under rule 35 of the FederalRules of Criminal Procedure, that factor would be taken into account in amotion for reduction of sentence under that rule. Id., citing FED. R. CRMt.P. 35. In support of its finding that the sentence imposed was for criminal,as opposed to civil, contempt, the court in DiMauro distinguished the sentenceimposed therein from the sentence in Shillitani, stating that this was an un-conditional sentence wherein the defendant's subsequent willingness to testifydid not result in their unconditional release. 441 F.2d at 432. For a discus-sion of the sentence imposed in Shillitani, see notes 24-26 and accompanyingtext supra.

54. 621 F.2d at 1261.55. Id. at 1261-62.56. Id.57. Id. at 1261, citing Cheff v. Schnackenberg, 384 U.S. 373 (1966); United

States v. Liddy, 510 F.2d 669 (D.C. Cir. 1974) (en banc), cert. denied, 420U.S. 980 (1975); United States v. Boe, 491 F.2d 970 (8th Cir. 1974). For adiscussion of the right to a jury trial, see note 40 and accompanying text supra.For the trial court's reference to this issue, see 621 F.2d at 1259.

58. 621 F.2d at 1261. For the text of the district court judge's advice toEyler, see id. at 1258-61. See also note 9 supra.

59. For a discussion of unconditional contempt sentences, see note 29and accompanying text supra. In concluding that the contempt was criminalin nature, the majority rejected the view that a trial judge must expresslyconsider the relative appropriateness of civil contempt sanctions prior to theimposition of criminal sanctions, a rule enunciated in United States v. DiMauro,441 F.2d 428 (8th Cir. 1971). 621 F.2d at 1261 n.9 (emphasis added). Fora discussion of the DiMauro rule, see notes 34-35 and accompanying textsupra.

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it would be inconsistent for the district judge to release Eyler from localcustody if the purpose of the contempt sentence was to coerce Eyler totestify at North's trial, thus presenting further support for the conclu-sion that the district court intended to impose an unconditional criminalcontempt sentence.6 0 The majority asserted that this conclusion wassupported by the actions taken by the district court after the trial hadconcluded.61 The majority referred first to the district court's denial ofEyler's motion to vacate his sentence pursuant to the statute authorizingthe civil contempt sanction.62 Furthermore, Judge Garth noted thatthe district judge, on the same day he refused Eyler's motion for a re-duction in sentence, clarified to the warden of the Morgantown FederalCorrectional Institution that Eyler's six-month contempt sentence wouldinterrupt his current sentences, thereby extending his total length ofincarceration in the prison.63

The majority found further support for its conclusion through theapplication of the "purpose test" 64 to the circumstances of this case.65

Recognizing two possible purposes for the contempt sentence, i.e. eitherto punish Eyler for his refusal to testify or to coerce Eyler to testify,66

the majority reasoned that it would be implausible to conclude that thedistrict court would have imposed a civil sanction which would havevirtually no coercive effect upon Eyler in this case.67 Judge Garth con-cluded that, in light of the fact that Eyler had refused to testify in theface of three explicit warnings 68 and that a civil contempt sentencewould be ineffective in coercing Eyler's testimony, 9 the district court

60. 621 F.2d at 1261-62. See note 10 supra.61. 621 F.2d at 1262.62. Id. Judge Garth reasoned that if the district judge had intended to

impose a civil contempt sentence, the district judge would have corrected thesentence to conform to the statute. Id. For the text of the statute authorizingthe imposition of a civil contempt sentence, see 28 U.S.C. § 1826 (1976).

63. 621 F.2d at 1262. Judge Garth determined that the content of thisletter clarifying Eyler's sentence was consistent with his conclusion that thedistrict court intended to impose an unconditional sentence. Id.

64. For a discussion of the "purpose test" for distinguishing criminal andcivil contempt, see notes 21-29 and accompanying text supra.

65. 621 F.2d at 1262-63.66. Id. at 1262. The majority noted that one possible purpose for the

district court's imposition of the contempt sentence was to punish Eyler forhis "contumacious, unexplained refusal to testify." Id. (emphasis added).

67. Id. at 1263. The majority stated that since, as a practical matter, acivil sentence would have lasted only a few days until the trial had ended, acivil contempt sanction would have virtually no coercive effect. Id. Addi-tionally, since Eyler was already incarcerated, the threat of an added few daysof imprisonment for his refusal to testify had virtually no coercive effect. Id.,citing United States v. Wilson, 421 U.S. at 317 n.9. For a discussion of Wilson,see note 33 supra.

68. 621 F.2d at 1263. For a discussion of the trial judge's warnings toEyler concerning the consequences of his refusal to testify, see notes 5-10 andaccompanying text supra.

69. See notes 66-67 and accompanying text supra.

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enforced its order by imposing an unconditional six-month criminalsentence.70 The majority further asserted that even if Eyler's sentencewere to be interpreted as being conditional, in that he could havepurged himself of the contempt by testifying at North's trial, it couldstill retain its criminal character since Eyler's sentence was no differentin substance than "hybrid" sentences imposed and approved in othercases. 71 Judge Garth concluded his analysis by stating that in the future,the district court should specify the nature of the contempt sentencebeing imposed.72

Chief Judge Seitz, in his dissenting opinion, claimed that the districtcourt's intention is "irrelevant" 73 unless Eyler had received "timelynotice that he was charged with a criminal offense." 74 The Chief Judgenoted that since the proceedings had been summary, Eyler could havereceived "fair notice" 75 only from the manner in which the proceedingswere conducted.70 He therefore concluded that Eyler should not becharged with notice of a criminal charge, because the hearing combinedelements of both civil and criminal contempt. 77 Furthermore, ChiefJudge Seitz voiced his belief that even if Eyler had received notice ofthe criminal charge, he had been substantially prejudiced, because hehad been deprived of his right to be heard on the charge.78 Thus, be-cause of the additional considerations which he had raised, the Chief

70. 621 F.2d at 1262.71. Id. at 1263-65. For a discussion of "hybrid" criminal contempt sen-

tences, see notes 44-53 and accompanying text supra. The majority noted"that whereas Eyler had obstinately flouted the court's order at least threetimes, Reina had asserted his legal position for not testifying in good faithand was not contumaciously disrespectful of the court's order." 621 F.2d at1264 n.15, citing Reina v. United States, 364 U.S. at 514. For a discussion ofReina, see notes 44-47 and accompanying text supra.

72. 621 F.2d at 1265. Judge Garth stated that in the future, district judgesshould specify the nature of the contempt and any conditions attached to thesentence, including the statutory basis of the contempt sanction. Id.

73. 621 F.2d at 1265 (Seitz, C.J., dissenting).74. Id., citing United States v. United Mine Workers, 330 U.S. 258, 295-98

(1947).75. For a discussion of "fair notice," see notes 38-39 and accompanying

text supra.76. 621 F.2d at 1265 (Seitz, C.J., dissenting).77. Id. For a discussion of the proceedings leading up to Eyler's contempt

sentence, see notes 3-10 and accompanying text supra. The Chief Judge notedthat the district court had not conformed strictly to the procedural require-ments of either type of contempt, but instead had made reference to therequirements of both. 621 F.2d at 1265 n.l (Seitz, C.J., dissenting).

78. 621 F.2d at 1265 (Seitz, C.J., dissenting), citing Taylor v. Hayes, 418U.S. 488 (1974). Noting that the right of allocution is not an empty ritualin a summary criminal contempt proceeding, the Chief Judge stated that "[a]contemnor may be able to persuade the sentencing judge to consider, whendetermining the length of sentences, such mitigating factors as the danger tohim or his family were he to testify. Such considerations would be irrelevantin formulating the terms of a civil contempt order." 621 F.2d at 1266 (Seitz,C.J., dissenting). For a discussion of the right to be heard on the charges in acontempt proceeding, see note 38 and accompanying text supra.

[VOL. 26: p. 625

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Judge concluded that the doubt should be resolved against character-izing Eyler's contempt as criminal and the case should be remanded tothe district court to modify its order.7 9

Judge Aldisert, dissenting separately, agreed with the assertions ofChief Judge Seitz but also disapproved of the practice of permitting acontempt sentence to interrupt the running of a current criminal sen-tence.80 Judge Aldisert contended that, in light of the Supreme Court'sdetermination that once a prison sentence has been imposed it may notbe extended,8 ' cases approving of the interruption of criminal sentenceshave been wrongly decided.82

It is submitted that the Third Circuit correctly recognized thatwhen an appellate court must determine the nature of a contempt sen-tence, the appropriate inquiry for the court to make is to determine thepurpose for which the sentence was imposed.8 3 In resolving the issueof the sentencing court's purpose, the reviewing court should examinethe nature of the sentence imposed,84 along with any practical considera-tions or characteristics of the sentencing proceedings that would shedlight on the trial court's purpose for the imposition of the sentence.85

However, it is suggested that the "purpose test" would not be appro-priate in a situation in which the contemnor was not afforded the dueprocess protections required in a criminal contempt proceeding.8 6 In

79. 621 F.2d at 1266 (Seitz, C.J., dissenting).80. Id. at 1266 (Aldisert, J., dissenting). Referring to the provisions of

rule 35 of the Federal Rules of Criminal Procedure, Judge Aldisert stated that"if a defendant may not invoke the jurisdiction of the court to reduce hissentences after 120 days, a fortiori, the government may not invoke that samejurisdiction to increase or interrupt that sentence, directly or indirectly, bysandwiching into it a new term of criminal contempt." Id. at 1267 (Aldisert,J., dissenting). For a discussion of rule 35, see note 12 supra.

81. See note 41 supra.82. 621 F.2d at 1267 (Aldisert, J., dissenting). Judge Aldisert noted that

his view on the propriety of interrupting a prison term by imposing a con-tempt sentence is in the minority. Id. This issue has not been addresseddirectly by the Supreme Court, although this procedure was noted with ap-proval by Justice Blackmun in United States v. Wilson, 421 U.S. at 321 n.2(Blackmun, J., concurring). However, eight courts of appeals currently permitthe interruption of a federal prison term for imposition of a civil contemptsentence. See note 41 supra.

83. For a discussion of the "purpose test" for distinguishing criminal con-tempt from civil contempt, see notes 21-29 and accompanying text supra.

84. See notes 24-29 and accompanying text supra.85. The court should look to whether a trial by jury was either received or

considered. See note 40 and accompanying text supra. It is further sug-gested that the manner in which the sentencing judge addressed the contemnorcould also bear on the issue of determining the purpose for the contempt.Finally, the court should look to the circumstances surrounding the impositionof the contempt and determine whether a civil sanction would serve its in-tended purpose of coercing the contemnor's testimony. See notes 31-33 andaccompanying text supra.

86. For a discussion of the due process protections afforded defendants ina criminal contempt proceeding, see notes 37-40 and accompanying text supra.

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such a case, the sentencing judge's purpose would be irrelevant and thedefendant could not be charged with a criminal offense.87

Examining the majority's application of this "purpose test" to thefacts of North, it is suggested that the majority's conclusion that thecontempt was criminal is supported by logic.88 Under the circumstancesof this case, the Third Circuit correctly reasoned that the only reason-able interpretation of the district court's purpose for imposing thesentence is an intent to punish Eyler for his refusal to testify, not forthe purpose of coercing his testimony.8 9 It is suggested that this con-clusion is supported by the unconditional nature of the sentence,90 alongwith the fact that, due to Eyler's present incarceration and the pendingconclusion of North's trial, a civil contempt sentence would not achieveits purpose of coercing Eyler's testimony.91 Furthermore, the fact thatthe district court considered the question of whether a jury trial wasnecessary 92 is a further indication of the criminal nature of the pro-ceeding.9

3

Although Chief Judge Seitz, in his dissenting opinion, focused uponthe procedural aspects of the case in the formulation of his position thatthe intention of the district court was "irrelevant," 94 it is submittedthat his position is not supported by precedent or by the record of thetrial court proceedings. 95 Although the trial court did not specifically

87. The sentence could not be considered to be criminal in nature be-cause the imposition of a criminal sentence without the defendant beingafforded his due process protections would be unconstitutional. See notes37-40 & 72-73 and accompanying text supra.

88. See notes 89-93 and accompanying text infra.89. See notes 64-70 and accompanying text supra.90. For a discussion of unconditional contempt sentences, see notes 27-29

and accompanying text supra. For the court's discussion of the nature of thecontempt sentence imposed, see note 58 and accompanying text supra.

91. For the court's analysis of these facts and their bearing on the issueof the sentencing judge's purpose, see note 67 supra. The Supreme Court hasstated that the fact that the contemnor was presently incarcerated satisfies the"good reason" requirement of Shillitani for the imposition of criminal sanc-tions. United States v. Wilson, 421 U.S. at 317 n.9. See notes 31-33 andaccompanying text supra.

92. 621 F.2d at 1259.93. See note 40 and accompanying text supra. In its analysis of the dis-

trict court proceedings, the court noted that the district court's subsequentdenial of Eyler's motion for correction of sentence was also indicative of thedistrict court's intent to impose criminal sanctions. See note 62 and accom-panying text supra. It is suggested, however, that this action by the districtcourt subsequent to the trial is not necessarily indicative of its intent at thetime that sentence was imposed.

94. See notes 73-74 and accompanying text supra.95. See notes 75-79 and accompanying text supra. The Chief Judge as-

serted that Eyler could not be held in criminal contempt unless he receivedtimely notice that he was charged with a criminal offense. See notes 73-77and accompanying text supra. However, the case upon which Chief JudgeSeitz relies in the development of his opinion dealt with the notice require-ments for contempts not committed in the presence of the court. See United

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state that Eyler was being sentenced for criminal contempt, the districtcourt's contempt order satisfied the procedural requirements for sum-mary disposition of contempt charges for contempt committed in thepresence of the court.96 Furthermore, the Chief Judge's contentionthat Eyler was deprived of his right to allocution on the charge is notsupported by the record.9

Although the majority contends that the Supreme Court approveda "hybrid" criminal contempt sentence in Reina, the Reina Court ex-plicitly refused to reach that issue because it was not raised by theparties.98 Furthermore, the Supreme Court, in Shillitani, cast doubtupon the propriety of imposing the type of "hybrid" sentence that wasimposed in Reina.9 9 As a result, it is suggested that the majority'sassertion that Eyler's sentence would retain its criminal character becauseit is no different in substance than the sentence imposed in Reina isquestionable in light of the uncertainty surrounding the "hybrid" crimi-nal contempt sentence.' 00 Despite this uncertainty, however, it is sug-gested that there are circumstances in which the "hybrid" criminalsentencing technique would have great value in coercing the testimonyof a recalcitrant witness.' 0' By imposing a fixed maximum sentenceand providing the contemnor with a period in which he can purge him-self of the contempt, the recalcitrant witness faces a stronger coercion totestify than would be the case if he faced a civil contempt sanction theduration of which was limited to the term of the grand jury or lengthof the trial.10 2 This is particularly evident in a situation in which thetrial is close to completion or the grand jury term is close to expiration,in which case the most effective method of coercing valuable testimonywould be by the imposition of a determinate sentence with a purge

States v. United Mine Workers, 330 U.S. 258, 295-98 (1974); note 73 andaccompanying text supra. This is distinguishable from the situation in North,as the instant contempt was committed in the presence of the court. See notes3-9 and accompanying text supra. For the due process requirements forcriminal contempts not committed in the presence of the court, see FED. R.CiM. P. 42(b).

96. 621 F.2d at 1260. The order entered by the district court set forththe facts leading to the imposition of the contempt sentence upon Eyler. Id.The provisions of rule 42(a) of the Federal Rules of Criminal Procedurerequire that the order recite the facts, but does not require a characterizationof the contempt. See note 39 supra.

97. See note 9 supra.

98. See note 46 and accompanying text supra.



101. For a discussion of the desirability of the use of a "hybrid," or fixedconditional, criminal contempt sentence, in the case of a recalcitrant witness,see Kuhns, supra note 48, at 113-18.

102. For a discussion of one commentator's view of the only possibleobjection to this type of sentence, see note 48 supra.

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clause.103 As a result, it is suggested that a sentencing judge shouldhave the power, either at his discretion or by statute,104 to impose afixed sentence with a purge clause in cases of criminal contempt.105

With respect to Judge Aldisert's assertion that a contempt sentenceshould not interrupt the running of current criminal sentences, 0 6 it issuggested that the reasoning that supports the approval of this practicein cases involving civil contempt may be inapplicable to this case ofcriminal contempt. 07 In those cases adopting this practice, the courtreasoned that the coercion of the civil contempt sentence would be lostif credit against the original sentence is given for time spent in confine-ment for contempt. 08 Since coercion is not a purpose for criminalcontempt sanctions, 09 this reasoning would not justify the interruptionof a sentence by a criminal contempt sentence. 110

The North decision makes it clear that, in the Third Circuit, thedistinguishing factor between criminal and civil contempt is the purposefor which the sanctions were imposed."' However, as a practical matter,the impact of the North decision is derived from the court's directive tothe district judges that they specify the particular nature of the con-tempt imposed, including the statutory authority upon which the

103. See note 67 supra. For a discussion of the coercive effect of condi-tional sentences, see notes 28-29 and accompanying text supra.

104. For a discussion of the desirability of regulating the imposition ofthis type of sentence by the enactment of statutes, see note 48 supra.

105. See notes 101-03 and accompanying text supra.106. See note 80 and accompanying text supra.107. For a listing of the circuits which have permitted the practice of

interrupting a current federal criminal sentence by imposing a civil contemptsentence, see note 41 supra.

108. See, e.g., In re Grand Jury Investigation (Hartzell), 542 F.2d 166,169 (3d Cir. 1976); United States v. Liddy, 510 F.2d 669, 675 (D.C. Cir. 1974)(en banc), cert. denied, 420 U.S. 980 (1975).

109. See note 29 and accompanying text supra.110. In those cases in which the practice of interrupting a current sentence

was approved, the basis of the contemnor's attack on this practice was theassertion that it was prohibited by a federal statute which provides that:

The sentence of imprisonment of any person convicted of anoffense shall commence to run from the date on which such person isreceived at the penitentiary, reformatory, or jail for service of suchsentence. The Attorney General shall give any such person credittoward service of his sentence for any days spent in custody in con-nection with the offense or acts for which sentence is imposed.

18 U.S.C. § 3568 (1976). For a list of these cases, see note 41 supra. However,the court in United States v. Liddy cited the legislative history of section 3568as demonstrative of a concern on the part of Congress for establishing a firmcommencement date for a sentence, not with the subsequent calculation andtermination date. 510 F.2d 669, 674 (D.C. Cir. 1974) (en banc), cert. denied,420 U.S. 980 (1975). It is suggested that this rationale, in support of thepractice of interrupting a current sentence with a contempt sentence, would

e equally applicable to criminal contempt or civil contempt.111. See notes 64-70 and accompanying text supra.

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1980-81] THIRD CIRCUIT REVIEW 639

contempt is based." 2 This should effectively eliminate the need toresolve issues such as those presented in North in the future." 3 How-ever, the Third Circuit's approval of the "hybrid" criminal sentencingtechnique, despite its questionable status following Shillitani, adds addi-tional confusion to this area of the law of contempt that will not beresolved until the Supreme Court acts definitively on the issue." 4

Donald N. Goldrosen

112. See note 72 and accompanying text supra.113. 621 F.2d at 1265.114. See notes 48-49 and accompanying text supra.

15



[VOL. 26: p. 640

CRIMINAL LAW - COLLATERAL ESTOPPEL - THE DOCTRINE OF

COLLATERAL ESTOPPEL BARS THE EVIDENTIARY USE OF CONDUCT,

WHICH WAS THE SUBJECT OF A PRIOR ACQUITrAL, WHERE

THE INTRODUCTION OF SUCH EVIDENCE REPRESENTS THE

RELITIGATION OF A PREVIOUSLY DETERMINED ISSUE.

United States v. Keller (1980)

In January of 1979, the defendant, Kerby Keller, was indicted inthe United States District Court for the Eastern District of Pennsylvaniaon a charge of conspiracy to distribute phencycladine phosphate (PCP),a non-narcotic controlled substance.' During the trial which resulted inhis conviction, 2 the defendant did not deny his participation in the con-spiracy3 but defended on the ground that he had been entrapped.4

1. United States v. Keller, 624 F.2d 1154, 1155 (3d Cir. 1980). The de-fendant was charged with conspiracy to violate the Controlled Substances Actwhich provides that "it shall be unlawful for any person knowingly or in-tentionally to manufacture, distribute, or dispense, or possess with intent tomanufacture, distribute or dispense, a controlled substance ...... Id., citing21 U.S.C. § 841(a)(1) (1976).

2. 624 F.2d at 1155. The defendant was found guilty after a four-dayjury trial and was sentenced to a term of three years' imprisonment. Id.

3. Id. The evidence indicated that the conspiracy ran from October 18through October 21, 1977 and involved Anderson, a government informant,Keller, and four co-defendants. Id. Anderson received a call from one ofthe co-defendants requesting two pounds of PCP. Id. According to Keller'stestimony, Anderson contacted Keller to mention the possibility of sellingthe PCP, as Anderson needed money to help pay his bills. Id. at 1155-56.Keller further testified that he agreed to participate only after Anderson hadsuggested several times that Keller supply the drugs and only because Andersonstressed that he needed the money. Id. Keller delivered the PCP to An-derson's home on October 20 where two of the co-defendants picked it up thefollowing day. Id. at 1155.

4. Id. Keller testified that Anderson had been a good friend for a num-ber of years and was having serious medical and financial problems. Id.Keller further stated that his concern over Anderson's financial problems hadprompted his participation in the sale of the PCP. Id. at 1155-56. For a dis-cussion of the entrapment defense, see notes 81 &c 85 and accompanying textinfra. For examples of the two approaches to the theory of entrapment,compare Hampton v. United States, 425 U.S. 484 (1976); United States v.Russell, 411 U.S. 423 (1973); Sherman v. United States, 356 U.S. 369 (1958);Sorrells v. United States, 287 U.S. 435 (1932) with Hampton v. United States,425 U.S. at 495 (Brennan, J., dissenting); United States v. Russell, 411 U.S.at 436 (Douglas, J., dissenting); Sherman v. United States, 356 U.S. at 378(Frankfurter, J., concurring); Sorrells v. United States, 287 U.S. at 453 (Roberts,J., concurring). For commentary dealing with the two approaches to en-trapment, see Donnelly, Judicial Control of Informants, Spies, Stool Pigeons,and Agent Provocateurs, 60 YALE L.J. 1091 (1951); Rotenberg, The PoliceDetection Practice of Encouragement, 49 VA. L. REV. 871 (1963); Note, En-trapment in the Federal Courts: Sixty Years of Frustration, 10 N. ENG. L.

(640)

16




Over defense counsel's objections, the government cross-examined thedefendant z concerning drug transactions which occurred subsequent tothe events charged in the present indictment,8 but for which Keller hadalready been tried and acquitted.7 The first acquittal was also basedon an entrapment defense.8

On appeal to the United States Court of Appeals for the ThirdCircuit, the defendant claimed that the district court had erred in ad-mitting the evidence of allegedly criminal conduct occurring subsequentto the period of the indictment.9 The Third Circuit 10 reversed andremanded, holding that the doctrine of collateral estoppel barred theevidentiary use of conduct for which the defendant had been previouslyacquitted. United States v. Keller, 624 F.2d 1154 (3d Cir. 1980).

The United States Supreme Court early recognized the applicationof res judicata l to criminal proceedings in United States v. Oppen-

REv. 179 (1974). See generally W. LAFAvE & A. ScoTr, CRIMINAL LAW 369-75(1972). See also United States v. West, 511 F.2d 1083 (3d Cir. 1975); UnitedStates v. Bueno, 447 F.2d 903 (5th Cir. 1971); United States v. Janotti, 501F. Supp. 1182 (E.D. Pa. 1980).

5. 624 F.2d at 1156. Defense counsel objected that the government's ques-tioning was not limited to any particular time period, however, the courtoverruled the objections. Id.

6. Id. During cross-examination, the defendant testified that he haddelivered methamphetamine to Anderson or a third party on five or six oc-casions in 1978. Id.

7. Id. Keller was tried on charges of distributing methamphetamine toAnderson and another individual on five occasions during 1978. Id.

8. Id. At the trial for the 1978 distributions of methamphetamine, Kelleradmitted his participation but claimed that he was induced by Anderson, act-ing as a government agent, to commit the crime. Id.

9. Id. There were three grounds for the claim of error: 1) subsequentacts are inadmissible to show predisposition or intent; 2) the doctrine ofcollateral estoppel bars evidentiary use of conduct for which defendant wasacquitted; and 3) the evidence was far more prejudicial than probative and,therefore, should have been excluded under FED. R. EvIn. 403. 624 F.2d at1156-57. Rule 403 of the Federal Rules of Evidence provides: "Although rele-vant, evidence may be excluded if its probative value is substantially out-weighed by the danger of unfair prejudice, confusion of the issues, or misleadingthe jury, or by considerations of undue delay, waste of time, or needless presen-tation of cumulative evidence." FED. R. EvID. 403.

10. The case was heard by judges Hunter, Higginbotham and Sloviter.Judge Sloviter wrote the opinion for a unanimous panel.

11. See BLACK'S LAW DICTIONARY 1174 (5th ed. 1979). Res judicata isdefined as the "[r]ule that a final judgment rendered by a court of com-petent jurisdiction on the merits is conclusive as to the rights of the partiesand their privies, and, as to them, constitutes an absolute bar to a subse-quent action involving the same claim, demand or cause of action." Id. Itshould be noted that the courts generally use res judicata in a broad sensedescribing the finality of a judgment, including collateral estoppel. lB J.MOORE, FEDERAL PRACrICE $ 0.441[2], at 3775 (2d ed. 1974). Collateral estop-pel is defined as the doctrine whereby a '[p]rior judgment between [the]same parties on a different cause of action is an estoppel as to those matters

1980-81]

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heimer.12 In 1948, the Supreme Court in Sealfon v. United StatesI s

endorsed the use of collateral estoppel, or issue preclusion, in cases in-volving different criminal offenses. 14 The Sealfon Court held that whenfacts which are essential to a conviction are previously determined in adefendant's favor by a verdict of not guilty, relitigation of those facts isbarred, thereby resulting in the preclusion of the subsequent prosecu-tion.15 While the doctrine of collateral estoppel was thus an established

in issue or points controverted, on determination of which finding or verdictwas rendered." BLACK'S LAW DIcrIONARY, supra, at 237. Though the termsare often used interchangeably, there is a significant difference in the opera-tion of the two doctrines. M. GREEN, BASIC CIVIL PROCEDURE 207 (1972)."The difference lies in the fact that in res judicata the subsequent suit involvesthe same cause of action, while in collateral estoppel the subsequent suit in-volves a different cause of action." Id. The Supreme Court has noted:

"Collateral estoppel" is an awkward phrase, but it stands for anextremely important principle in our adversary system of justice. Itmeans simply that when an issue of ultimate fact has once been de-termined by a valid and final judgment, that issue cannot again berelitigated between the same parties in any future lawsuit.

Ashe v. Swenson, 397 U.S. 436, 443 (1970).

12. 242 U.S. 85 (1916). The defendant in Oppenheimer, indicted for con-spiracy to steal assets from a trustee in bankruptcy, interposed a plea in barbased on a previous adjudication concerning the same offense. Id. at 85-86.In the previous adjudication, prosecution had been barred by the Statute ofLimitations. Id. at 86. The government argued that the doctrine of collateralestoppel did not exist for criminal cases except in the modified form of thefifth amendment double jeopardy clause. Id. at 87. The government furtherargued that the previous decision based on the Statute of Limitations did notprevent a second trial since the defendant had never been in jeopardy inthe sense of being before a jury upon the facts of the offense charged. Id.In rejecting this argument, the Court noted that an acquittal on the basis ofthe Statute of Limitations is a judgment on the merits, which goes to thedefendant's liability as a matter of substantive law. Id. Therefore, such anacquittal offers no less protection against a second trial than an acquittal uponthe ground of innocence. Id. The Court went on to assert that the fifthamendment was not intended to supplant what, in the civil law, is a funda-mental principle of justice and held that the previous adjudication on themerits would operate as a bar to any subsequent prosecution for the sameoffense. Id. at 88.

13. 332 U.S. 575 (1948).

14. Id. at 580. The defendant was first tried and acquitted on chargesof conspiracy to defraud the United States by presenting false invoices to aration board. Id. at 576-77. The second trial was based on an indictment

charging the defendant with aiding and abetting the uttering and publishingof the false invoices introduced in the conspiracy trial. Id. at 577. An essen-tial element of the prosecution's case in the subsequent trial was an allegedagreement between the defendant and a co-conspirator which was necessarilyproved to be non-existent by the verdict of acquittal in the former trial. Id.at 579-80.

15. Id. at 580. The Court noted that the basic facts in each trial wereidentical and that the core of the prosecutor's case was virtually the same inboth trials. Id. The Court stated that the government could not be allowed"a second attempt to prove the agreement which at each trial was crucial to

[VOL. 26: p. 640

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rule of federal criminal law,16 the Supreme Court's decision in Ashe v.Swenson 17 elevated it to a constitutional requirement embodied in thefifth amendment guarantee against double jeopardy.'s In that case, the

petitioner, Ashe, was prosecuted for the robbery of one of a group ofpoker players and found not guilty due to insufficient evidence. 19 Sixweeks later, Ashe was charged with the robbery of another participantin the same poker game.2 0 The Supreme Court found that the onlyconceivable basis for the jury's decision in the first trial was that Ashewas not one of the robbers, and, thus, held that collateral estoppelwould render a second prosecution for robbery impermissible. 21

the prosecutor's case and which was necessarily adjudicated in the former trialto be non-existent." Id.

16. Id. See, e.g., Coffey v. United States, 116 U.S. 436 (1886); UnitedStates v. Kramer, 289 F.2d 909 (2d Cir. 1961); United States v. Curzio, 170F.2d 354 (3d Cir. 1948); United States v. Cowart, 118 F. Supp. 903 (D.D.C.1954). See generally Lugar, Criminal Law, Double Jeopardy and Res Judicata,39 IowA L. REV. 317 (1954); Mayers & Yarbrough, Bis Vexari: New Trials andSuccessive Prosecutions, 74 HARV. L. REV. 1 (1960); McLaren, The Doctrine ofRes Judicata As Applied to the Trial of Criminal Cases, 10 WASH. L. REV.198 (1935).

17. 397 U.S. 436 (1970).

18. Id. at 445. The fifth amendment provides in pertinent part: "[n]orshall any person be subject for the same offence to be twice put in jeopardy oflife or limb." U.S. CONST. amend. V. In general, the double jeopardy clauseof the fifth amendment protects against multiple punishment for the sameoffense and prohibits multiple prosecution for the same offense. 3 WHARTON'SCRIMINAL EVIDENCE § 655 (13th ed. 1973). The Supreme Court has held thatthis guarantee is applicable to, and binding upon, the states through the four-teenth amendment. Benton v. Maryland, 395 U.S. 784 (1969). Since theSupreme Court determined in Ashe that the federal rule of collateral estoppelis an integral feature of the double jeopardy clause, reprosecution when adeterminative issue has been previously adjudicated in the defendant's favoris constitutionally prohibited. See 397 U.S. at 436. For a further discussionof Ashe, see notes 19-21 and accompanying text infra.

19. 397 U.S. at 438. There was no question that an armed robbery hadoccurred or that personal property had been taken from the victim, but thestate's evidence that petitioner had been one of the robbers was found to beinsufficient. Id. at 439.

20. Id. at 440. The witnesses in the second trial were essentially the same,although their testimony with regard to the petitioner's identity was substan-tially stronger. Id. at 439-40.

21. Id. at 445. The Supreme Court emphasized that the prosecution couldnot treat the defendant's acquittal as no more than a dry run for the secondprosecution simply by changing the name of the victim. Id. at 447. TheCourt also cautioned that "federal decisions have made it clear that the rule ofcollateral estoppel is not to be applied with the hypertechnical and archaicapproach of a 19th century pleading book, but with realism and rationality."id. at 444.

The facts of Ashe present a reprosecution situation involving slightly dif-ferent offenses springing from the same criminal episode. See notes 19-20 andaccompanying text supra. With this type of fragmented prosecution, the tradi-tional guarantee that no person shall be twice put in jeopardy for the sameoffense would have offered no protection. 397 U.S. at 446. With the recent

1980-81]

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Although the leading Supreme Court decisions dealing with col-lateral estoppel involve fragmented prosecutions arising out of the samecriminal episode and resulting in a bar to retrial,2 2 collateral estoppelhas also been applied in the federal courts as an evidentiary defense,barring the use of evidence of crimes of which a defendant has beenpreviously acquitted.28 The Third Circuit had endorsed collateralestoppel as an evidentiary defense several years before the Ashe decisionin United States v. Simon 24 and United States v. DeAngelo.25 WhileAshe clearly mandates the application of collateral estoppel in appro-

proliferation of statutory offenses, the doctrine of collateral estoppel has gainedadded significance. 1B J. MooRE, supra note 11, 0.418, at 2766; Mayers &Yarbrough, supra note 16. For a discussion of the impact of the Ashe deci-sion, see Note, Constitutional Law - Double Jeopardy - Collateral Estoppel IsConstitutionally Required in Criminal Cases Because It Is Embodied in theFifth Amendment Double Jeopardy Clause, 69 Micn. L. REv. 762 (1971) (here-inafter cited as "Michigan Note"); Note, Constitutional Law - Double Jeop-ardy - Collateral Estoppel Is an Integral Part of the Fifth Amendment Prohi-bition Against Double Jeopardy, 39 U. CIN. L. REv. 590 (1970).


23. See United States v. Kramer, 289 F.2d 909 (2d Cir. 1961). In Kramer,the defendant was first acquitted for the substantive offense of burglary. Id.at 912. During a second trial for conspiracy to burglarize and receive stolengoods, the government introduced evidence of the defendant's participation inthe burglaries which was substantially identical to that introduced in the firsttrial. Id. at 915. The Second Circuit held that the government was col-laterally estopped from attempting to prove a new charge by introducingevidence of facts necessarily determined in the previous trial in the defend-ant's favor. Id. at 916. The court reasoned that whether the facts sought tobe precluded are mediate, that is, evidentiary, or ultimate in the second trialshould have no bearing on a court's decision to invoke collateral estoppel. Id.at 917. Ultimate facts are those which would be essential elements of thecharge. Evergreen v. Nunan, 141 F.2d 927, 928 (2d Cir.), cert. denied, 323U.S. 720 (1944).

24. 225 F.2d 260 (3d Cir. 1955). After trial on a two-count indictment,Simon was acquitted on the charge of receiving stolen turkeys and found guiltyof the charge of possession of the same stolen turkeys. Id. at 261. The de-fendant's motion for a new trial was granted and the guilty verdict was setaside. Id. On retrial of the possession charge, the trial court allowed evi-dence of the receipt of the stolen turkeys and testimony by the admitted thiefthat he had delivered the turkeys to the defendant. Id. On appeal, the ThirdCircuit reversed and held that "the government is estopped from relitigatingin a second trial facts already determined in the first." Id. at 262.

25. 138 F.2d 466 (3d Cir. 1943). In DeAngelo, the defendant was firstindicted for robbery and acquitted. Id. at 467. In the subsequent trial forconspiracy to commit robbery, the government introduced evidence to show thedefendant's participation in the substantive offense, even though it was notnecessary for the overt act requirement of the conspiracy charge. Id. Defensecounsel's offer of proof that the material issue of the defendant's presence andparticipation in the robbery had been conclusively determined in the previoustrial was rejected. Id. at 468. On appeal, the Third Circuit reversed on thebasis that the jury in the robbery trial had determined the issue of the de-fendant's participation adversely to the government and that to permit themto raise the issue again in the subsequent trial constituted substantial error.Id. at 469.

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priate reprosecution cases,20 it does not provide any guidance as towhether evidentiary use of conduct which was the subject of a prioracquittal is constitutionally precluded.2 7 The two courts of appealswhich have considered this issue have regarded the guarantee againstdouble jeopardy as now incorporating a prohibition against the evi-dentiary use of conduct or crimes for which the defendant was previouslyacquitted.28 The Fifth Circuit, in Wingate v. Wainwright,29 held that,under Ashe, the state cannot seek to relitigate for any purpose an issuewhich was determined in a prior prosecution of the same party.8 0 Simi-larly, the Second Circuit's approach in United States v. Mespoulede 81reflected the concern that "constitutionally rooted considerations offairness" prohibit introduction of any issues necessarily decided in thedefendant's favor in a trial for another offense.8 2

Other courts of appeals have favored a narrower interpretation ofthe Ashe mandate, declining to view collateral estoppel as a completebar to evidentiary use of conduct that was the subject of a prior ac-

26. See United States v. Larkin, 605 F.2d 1360 (5th Cir. 1979); United Statesv. Sarno, 596 F.2d 404 (9th Cir. 1979); United States v. Venable, 585 F.2d 71(3d Cir. 1978). In Venable, the court rejected the defendant's plea that re-trial was barred because there was no inconsistency between the earlier acquittaland the subsequent charges. Id. at 78-79.

27. See 397 U.S. at 443. See also Note, Expanding Double Jeopardy: Col-lateral Estoppel and the Evidentiary Use of Prior Crimes of Which the De-fendant Has Been Acquitted, 2 FLA. STATE U.L. REv. 511 (1974); MichiganNote, supra note 21, at 772-73.

28. See United States v. Mespoulede, 597 F.2d 329, 332 (2d Cir. 1979);Wingate v. Wainwright, 464 F.2d 209, 211 (5th Cir. 1972); notes 29-32 andaccompanying text infra.

29. 464 F.2d 209 (5th Cir. 1972).

30. Id. at 214-15. The defendant in Wingate had been acquitted of tworobberies and was convicted on charges of a third unrelated robbery. Id. at210. In an effort to prove course of conduct, the state introduced testimonyby the two store owners who were complainants in the prior acquittals thatthe defendant had robbed them. Id. The Fifth Circuit saw no meaningfuldifference in the quality of jeopardy to which a defendant is exposed inrelitigating a fact issue that is ultimate or one that is evidentiary in thesecond prosecution. Id. at 213. The court stated:

In both instances the state is attempting to prove the defendantguilty of an offense other than the one of which he was acquitted.In both instances the relitigated proof is offered to prove some ele-ment of the second offense. In both instances the defendant is forcedto defend again against charges or factual allegations which he over-came in the earlier trial.

Id. at 213-14.

31. 597 F.2d 329 (2d Cir. 1979).

32. Id. at 330. In the first trial in Mespoulede, the defendant was chargedwith both possession of cocaine with intent to distribute and conspiracy todistribute cocaine. Id. at 331. The possession count resulted in an acquittal,but the conspiracy charge ended in a mistrial. Id. at 332. On retrial, the

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quittal.3 Instead, these courts have reasoned that evidence of othercrimes should not be rendered inadmissible by a defendant's acquittalwhere it is not introduced for the purpose of relitigating the defendant'sguilt or innocence in the previous prosecution. 4 Although the ration-ales relied upon vary with the fact patterns presented, 35 these courts

defendant's motion to bar evidence of possession was denied. Id. Commentingthat "the constitutional question raised by this appeal cannot be decided inthe abstract," the Second Circuit found it necessary to examine the transcriptof the two trials in detail. Id. at 330. The court then found that analysisof the first judgment revealed that the fact finder had determined that therewas no possession by the defendant since the other elements of the offensewere either stipulated or not in dispute. Id. at 333. Consequently, it con-cluded that the government was collaterally estopped from injecting this issueinto a second trial. Id. at 336.

33. See United States v. Van Cleave, 559 F.2d 954 (10th Cir. 1979);Oliphant v. Koehler, 594 F.2d 547 (6th Cir.), cert. denied, 444 U.S. 877 (1979);King v. Brewer, 577 F.2d 435 (8th Cir. 1978).

In Van Cleave, evidence of repainting and restamping a vehicle, relatingto a charge on which the defendant was acquitted, was held to be admissibleto prove motive and intent in a second trial concerning another stolen vehicle,as an inseparable part of the offense with which the defendant was charged.599 F.2d at 957. The Tenth Circuit distinguished Ashe, reasoning that thesecond prosecution involved an entirely different criminal transaction andtherefore double jeopardy was not in issue. Id. at 956.

In Oliphant, two witnesses who were complainants against the defendanton previous rape charges, of which he had been acquitted, were called to tes-tify in a third prosecution against him for rape. 594 F.2d at 547. (Thefactual situation presented is thus similar to Wingate. See note 30 supra.)The state endeavored to prove through this testimony that Oliphant had en-gaged in similar prior acts of orchestration. 594 F.2d at 555. In all threetrials, Oliphant admitted that he had had intercourse with the complainants,but contended that it was consensual. Id. at 554. The Sixth Circuit held thatthe testimony of the two witnesses was not barred by collateral estoppel. Id.at 555. The court noted that "[t]he juries which acquitted Oliphant couldeasily have concluded both that Oliphant orchestrated the events surroundingthe prior sexual encounters and that the women had consented to his ulti-mate advances." Id., citing Ashe v. Swenson, 397 U.S. at 444. In distinguishingthis case from Ashe, the Sixth Circuit emphasized that the two other incidentswere not part of the same criminal episode. 594 at 554.

In King v. Brewer, the defendant was acquitted of the July 8th robberyof Cal g: Bob's supermarket on the strength of an alibi defense. 577 F.2d at437. In a subsequent trial for the July 7th robbery of Medd-O-Lane, thestate introduced evidence that tended to show that the defendant had re-ceived pellet wounds during the commission of the robbery at Cal & Bob's.Id. at 439. Although both counsel had been cautioned at the pretrial con-ference to avoid any reference to the previous trial, the transcript revealedthat the defendant first raised the issue "to secure the advantage of the earlieracquittal . . . ." Id. at 443. The Eighth Circuit's holding that the evidencewas admissible was based both on a finding of invited error and a deter-mination that Ashe was distinguishable from the facts at issue. Id. at 440,443. The court noted that "the Ashe case is not controlling in this appeal.In the Ashe case the separate charges arose out of the same transaction oroccurrence." Id. at 440.


35. United States v. Van Cleave, 599 F.2d 954, 956 (10th Cir. 1979)(charges in second prosecution involved a different criminal episode); Oliphant

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have generally found that evidence of another crime is not necessarilyrendered inadmissible by the mere fact that the defendant was acquittedof the charge.8 6

Notwithstanding the divergence of views among the courts of ap-peals regarding the scope of double jeopardy protection afforded byAshe,37 the federal courts uniformly acknowledge one fundamentallimitation upon the doctrine of collateral estoppel, namely, that thedoctrine will not be invoked when "a rational jury could have groundedits verdict on an issue other than that which the defendant seeks to fore-close from consideration." 38 This limitation was thoroughly examinedby the Second Circuit in United States v. Cala.39 Cala was first chargedin California where it was alleged that, on August 9, 1972, he was inpossession of counterfeit currency with intent to defraud.4 0 Cala ad-mitted possession on the stand, but claimed it was innocent possessionand was acquitted.4 1 Thereafter, Cala was indicted in New York on acharge of conspiracy to transfer the same counterfeit currency, 1ihichagreement was allegedly made during the month of July, 1972.42 Calacontended that the government was collaterally estopped from provinghis intent to defraud, since the California acquittal necessarily resolvedthe issue of criminal intent in his favor.43 The Second Circuit, how-ever, found that the California jury's determination that the governmenthad failed in its proof of intent on or about August 9 did not mandatea conclusion that Cala could not have had the requisite intent duringthe earlier period.44

v. Koehler, 594 F.2d 547, 555 (6th Cir.), cert. denied, 444 U.S. 877 (1979)(witnesses' testimony in subsequent trial did not necessarily contradict jury'sconclusions in previous acquittal); King v. Brewer, 577 F.2d 435, 440-41 (8thCir. 1978) (evidence introduced for the purpose of impeaching credibilityrather than relitigation of defendant's guilt or innocence in the previoustrial).

36. United States v. Van Cleave, 599 F.2d 954, 957 (10th Cir. 1979);Oliphant v. Koehler, 594 F.2d 547, 554-55 (6th Cir.), cert. denied, 444 U.S.877 (1979); King v. Brewer, 577 F.2d 435, 440-41 (8th Cir. 1978).


38. Ashe v. Swenson, 397 U.S. at 444 (citation omitted). See Douthit v.Estelle, 540 F.2d 800, 806 (5th Cir. 1976); United States v. Woods, 484 F.2d127, 138 (4th Cir. 1973); United States v. Addington, 471 F.2d 560, 567 (10thCir. 1973); United States v. Pappas, 445 F.2d 1194, 1199 (3d Cir. 1971).

39. 521 F.2d 605 (2d Cir. 1975).40. Id. at 606.

41. Id. Cala testified that he had received the currency from an unknownsource and, while in an apprehensive state, had attempted only to destroy orotherwise rid himself of the money. Id.

42. Id. Apparently, the government did not discover evidence of theconspiracy until after the California trial. Id. at 607.

43. Id. at 608.

44. Id. "The indictments and records of both trials reveal not only thatin each case a separate crime relating to a different time period was alleged

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Although the doctrine of collateral estoppel is frequently the basisfor determining the admissibility of evidence presented in prior ac-quittals, there are instances in which courts have relied on the balancingtest of Rule 403 of the Federal Rules of Evidence.45 Evidence of othercrimes, wrongs, or acts may not be introduced solely to prove that adefendant has criminal propensities.46 However, such evidence is ad-missible for other purposes, including "proof of motive, opportunity,intent, preparation, plan, knowledge, identity, or absence of mistake oraccident." 47 In United States v. Castro-Castro,48 the Ninth Circuit up-held the decision of the trial court to admit evidence of the defendant'sprior arrest for smuggling marijuana across the Mexican border eventhough the defendant had been acquitted of that charge.49 The courtrested its decision entirely on a finding that the trial judge did not abusehis discretion in that the evidence, though undoubtedly prejudicial tothe defendant, was highly relevant to the government's task of provingspecific intent.50

but that the evidence introduced by the parties in each case was for the mostpart confined to its separate time period." Id. The court noted that its deci-sion would have been more difficult if the government had introduced evi-dence of the defendant's complicity in the conspiracy, which formed the basisof the New York indictment, in the California trial. Id. at 609. The courtconcluded that "[t]he significant fact is that the second trial did not amountto a rehash of the evidence presented at the first trial, but was devoted toproof of a different crime involving different evidence." Id.

45. See United States v. Moore, 522 F.2d 1068 (9th Cir. 1975), cert. denied,423 U.S. 1049 (1976) (evidence of prior similar acts admissible with instruc-tions to minimize any unfair prejudice); United States v. Phillips, 401 F.2d 301(7th Cir. 1968) (evidence of drug sale for which the defendant was previouslyacquitted inadmissible). The Phillips decision did address the question ofcollateral estoppel, but the determination of whether the trial court shouldhave admitted the evidence of conduct which was the subject of a prioracquittal was made on the basis of Federal Rule of Evidence 403. Id. at 304-05.The court explained that "[filf the proffered evidence does not have substantialrelevance outweighing its potentially unduly prejudicial effect, its admissionis an abuse of discretion." Id. at 306. For the text of Rule 403, see note 9supra.

46. FED. R. Evm. 404(b).

47. Id.

48. 464 F.2d 336 (9th Cir. 1972).

49. Id. The second trial involved a similar prosecution for smugglingmarijuana. Id. at 336. In both instances, the defendant was offered moneyby men, who he claimed that he did not know, to drive a car across theborder; and, in both trials, denied any knowledge of the marijuana that wasfound in the car. Id. at 337.

50. Id. Certainly a major factor in the court's appraisal of the effect ofthe evidence was that the trial judge "carefully instructed the jury that [theevidence] was admissible only on the issue of intent, and that it could beconsidered solely for the purpose of determining whether the defendant .. .had acted wilfully or innocently." Id. Judge Ely's dissent, however, wasprimarily based on the doctrine of collateral estoppel. Id. at 338. Judge Ely

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Against this background, the Third Circuit analyzed the districtcourt's ruling which allowed cross-examination of Keller as to the drugdealing for which he had previously been tried and acquitted.51 TheKeller court first reviewed the pre-Ashe Third Circuit case law dealingwith defensive or evidentiary use of collateral estoppel. 52 The courtdiscussed its decisions in DeAngelo 5 and SimonZ4 noting that, in bothcases, the government was estopped from relitigating facts which hadbeen materially at issue in a former trial and conclusively determinedby the defendant's acquittal. 55

The Third Circuit distinguished Ashe on the ground that it in-volved a prosecutorial attempt to fragment offenses, whereas Keller con-cerned the evidentiary use of facts determined in a trial for independentcriminal conduct.56 The court then discussd the constitutional scope ofcollateral estoppe157 but found it unnecessary to decide whether theAshe constitutional mandate applied to the facts at issue.58 Rather, thecourt found nothing in Ashe to suggest that the doctrinal approach tocollateral estoppel previously delineated in DeAngelo and Simon should

strongly advocated the preclusion of the defendant's previous arrest in ac-cordance with the teachings of Ashe and Sealfon. Id.

Other decisions reflect a dual approach to the problem of admissibility ofprior acquittals in discussing both collateral estoppel and Federal Rules ofEvidence 403 and 404(b). See United States v. Van Cleave, 599 F.2d 954 (10thCir. 1979) (evidence relevant to motive and intent); Oliphant v. Koehler,594 F.2d 547 (6th Cir.), cert. denied, 444 U.S. 877 (1979) (evidence indicativeof plan or scheme to orchestrate events to prove consent).

51. 624 F.2d at 1155. The court held that the evidence was inadmis-sible under the doctrine of collateral estoppel and, therefore, did not reachappellant's other contentions. Id. at 1157. For a summary of appellant'sclaims of error, see note 9 supra.

52. 624 F.2d at 1157.

53. Id. See note 25 supra.

54. 624 F.2d at 1157. See note 24 supra.

55. 624 F.2d at 1157. See United States v. Simon, 225 F.2d at 261; UnitedStates v. DeAngelo, 138 F.2d at 469. It is interesting to note that in bothDeAngelo and Simon, the defendant was being tried on charges arising outof the same basic criminal episode involved in the previous acquittal. Seenotes 24 & 25 supra.

56. 624 F.2d at 1158.

57. Id. at 1158-60.

58. Id. at 1159-60. The court first recognized that:

It might be possible to read Ashe v. Swenson as incorporating withinthe double jeopardy clause only that anti-harassment aspect of collateralestoppel which bars reprosecution since there is a qualitative differencebetween reprosecution and the broader scope of collateral estoppel asapplied to the evidentiary use of prior acquittals in prosecutions in-volving different offenses . . . . As long as the subsequent prose-cution is not precluded by the double jeopardy clause, the anti-harassment function of collateral estoppel may lose much of its relevance

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be curtailed 59 and concluded that issue preclusion is not confined onlyto those instances which would be coextensive with a plea of doublejeopardy60

Once the Keller court determined that the broader doctrinal scopeof collateral estoppel was in no way affected by Ashe, the only remainingquestion was whether the facts of Keller mandated reversal. 01 The courtrejected the government's contention that the undisputed fact of the 1978distributions by Keller, as opposed to his acquittal, was put in issue oncross-examination.6 2 The Third Circuit reasoned, however, that to holdthat the evidence of the previous conduct was admissible would "evis-cerate the effect of the prior acquittal." 63 In support of this position,

since it is the requirement of standing trial which constitutes theforbidden harassment.

Id. at 1159. However, the court also noted that the definition of collateralestoppel was never fully discussed in Ashe and "could be interpreted to meanthat the [Supreme] Court intended to bar any use in subsequent prosecutionsof evidence previously determined in defendant's favor by a prior verdict ofacquittal." Id. at 1159-60 n.5 (emphasis in original). This latter view is theone adopted by the Fifth Circuit in Wingate and the Second Circuit in Mes-poulede. See notes 27-32 and accompanying text supra. The Keller court didnote, however, that:

There will undoubtedly be future cases in which a determination mustbe made as to the coextensiveness of constitutional collateral estop-pel and doctrinal collateral estoppel. It may arise when plain erroris asserted, when it is raised in habeas corpus as distinguished fromdirect appeal, or in consideration of the scope of the applicabilityof collateral estoppel to the states. None of these circumstances arepresented by the facts or procedural posture of this case.

624 F.2d at 1160 n.6.

59. 624 F.2d at 1159.

60. Id. For a discussion of the court's reasoning, see note 58, supra.

61. 624 F.2d at 1160.

62. Id. The government attempted to distinguish Keller from previouscase law on the ground that Keller did not deny his participation in the 1978distributions but claimed that he was entrapped. Brief for Appellee at 11,United States v. Keller, 624 F.2d 1154 (3d Cir. 1980). The government arguedthat "[i]t is not the result of the prior case that was material, but rather thefacts which were undisputed." Id. (emphasis in original).

63. 624 F.2d at 1160. The court stated that "the government would haveus hold that the prior conduct is admissible notwithstanding the determinationby the earlier fact finder that the defendant's state of knowledge and level ofparticipation did not satisfy the requirement of the criminal law." Id., citingUnited States v. Phillips, 401 F.2d 301, 305 (7th Cir. 1968). In Phillips, theSeventh Circuit held that it was clearly erroneous for the trial court to haveallowed evidence of allegedly criminal prior conduct without informing thejury of the acquittal. Id. at 305. It left the jury free to decide anew the"state of appellant's knowledge and the extent of his participation" in theearlier transaction, an issue conclusively determined by the previous verdict ofacquittal. Id. For a discussion of Phillips, see note 45 supra.

In Keller, the transcript of the district court proceedings reveals that theprosecution did not question the defendant about the charges, indictment or

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the court expressed agreement with the Fifth Circuit's rationale inWingate 64 and the teachings of the Second Circuit in Mespoulede 65

that fundamental fairness prohibits any attempt by the government tooffer proof that a defendant committed a crime which a jury has decidedthat he did not commit. 66 The court concluded by stating that thegovernment's position in Keller would place an unjust burden on thedefendant by requiring him to "relitigate the very issue a jury decidedin his favor." 67

It is submitted that the Keller decision correctly reaffirms its long-standing support for the sound legal principle that facts actually decidedin a defendant's favor cannot be relitigated in a second trial regardlessof whether they are necessary to support the verdict in the subsequenttrial.6 8 The factual situation in Keller, however, can be distinguishedfrom previous case law to the extent that the application of collateralestoppel may be inapposite when the previous acquittal rests on thedefense of entrapment. 9

It is readily apparent that Keller was charged with two differentoffenses based on two different criminal episodes separated in time byover six months.70 The evidence offered by the prosecution thus differedconsiderably in the two trials.7 ' Moreover, the government did not

judicial disposition following the 1978 distributions. Rather, it was the de-fense counsel who pursued this line of inquiry on re-direct examination andelicited from Keller the fact of his acquittal. Transcript, United States v.Keller, No. 78-365 (E.D. Pa., May 25, 1979).

64. See Wingate v. Wainwright, 464 F.2d 209 (5th Cir. 1972); notes 29-30and accompanying text supra.

65. See United States v. Mespoulede, 597 F.2d 329 (2d Cir. 1979); notes31-32 and accompanying text supra.

66. 624 F.2d at 1160.

67. Id., quoting United States v. Mespoulede, 597 F.2d at 334.

68. See notes 52-56 and accompanying text supra; text accompanying note60 supra.

69. See notes 70-86 and accompanying text infra.

70. 624 F.2d at 1155-56.

71. See id. Compare the facts of Oliphant v. Koehler, 594 F.2d 547, 554-55 (6th Cir.), cert. denied, 444 U.S. 877 (1979); King v. Brewer, 577 F.2d 435,437-39 (8th Cir. 1978); United States v. Gala, 521 F.2d 605, 606-09 (2d Cir.1975) (cases where the subsequent prosecution involved independent criminalconduct, thus the evidence differed considerably from that introduced in theprior acquittal) with the factual pattern of United States v. Simon, 225 F.2dat 261; United States v. DeAngelo, 138 F.2d at 467-68 (cases involving trialsarising out of the same criminal episode, therefore evidence in both trials wassubstantially the same). For a discussion of Oliphant and King, see note 33supra. For a discussion of Cala, see notes 39-44 and accompanying text supra.For a discussion of DeAngelo and Simon, see notes 24 & 25 supra. But seeWingate v. Wainwright, 464 F.2d at 213 (the Fifth Circuit clearly indicatedthat there would be no "same transaction" limitation in the constitutionalscope of collateral estoppel).

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seek to introduce evidence in the second trial which was necessarily in-consistent with the previous acquittal. 72 Clearly, the admitted distribu-tions were not the basis of the acquittal in the first prosecution. Rather,the jury's verdict was grounded on a finding that Keller's conduct wasinduced by the government. 73 Consequently, it is submitted that appli.cation of the Ashe test - whether a rational jury could have rested itsverdict on an issue other than that which the defendant seeks to pre-clude - need not result in the exclusion of the evidence on the basis ofthe doctrine of collateral estoppel.74

It is further submitted that an acquittal based on an entrapmentdefense presents a unique situation 75 which demands a more detailedanalysis of the relationship between the evidence sought to be intro-duced and the previous judgment.76 If the evidence admitted at thesecond trial actually amounts to a relitigation of the issue of the de-fendant's guilt resolved in the first trial, the use of that evidence isclearly precluded. 77 The Keller court, however, did not specificallyaddress the question of whether the cross-examination concerning the1978 distributions represented a reexamination of the guilt issue. 78 Inview of the peculiar nature of the previous acquittal, 79 this questionwould seem to be an essential step in the court's rationale.

72. See 624 F.2d at 1156. The cross-examination elicited admissions madeunder oath by the defendant in the previous trial. Id. Such admissions wereimplicit in an acquittal based on an entrapment defense. See note 75 infra.

73. 624 F.2d at 1156.

74. See text accompanying note 38 supra.

75. See W. LAFAVE 8c A. ScoTr, supra note 4, at 369-75. Though gen-erally a not guilty plea is raised by the defendant, in this context, the de-fendant would admit having engaged in the proscribed conduct and proceedto offer evidence to support the theory of entrapment. Id. at 373. This typeof defense is clearly a departure from the traditional not guilty plea where thedefendant denies having any involvement in the events charged in theindictment.

76. See note 32 and accompanying text supra. The Mespoulede courtwarned that the important constitutional guarantees of Ashe could not beapplied without a thorough examination of the entire record of both trials.597 F.2d at 330.

77. See notes 29-34 and accompanying text supra; note 44 supra.

78. See note 87 infra. The rationale in the Keller opinion is devotedalmost entirely to the doctrinal scope of collateral estoppel and its coextensive-ness with the Ashe constitutional mandate. 624 F.2d at 1156-60. Only in thelast two paragraphs does the court address the argument that Keller is dis-tinguishable from other situations involving the application of collateralestoppel. Id. at 1160.

79. See notes 69-73 and accompanying text supra; note 75 supra; notes80-86 and accompanying text infra. Keller's acquittal based on an entrapmentdefense is distinguishable from the type of verdicts rendered in Simon andDeAngelo. See notes 24 & 25 supra. Both of those cases involved trials whicharose out of the same criminal episode where the government's case in thesecond trial would, of necessity, include much of the same evidence pre-

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Whether the admission into evidence of the undisputed facts of theprevious trial can be characterized as denying the effect of the prioracquittal can, it is suggested, only be answered if there is a close analysisof the implications of the jury's verdict and consideration of how theproffered evidence bears on that verdict.8 0 With a verdict of acquittalbased on an entrapment defense, two lines of argument could be de-veloped as to the characterization of the jury's verdict. The traditional,or "subjective," view is that the jury's findings amounted to the con-clusion that Keller would never have engaged in distributing meth-amphetamine but for the inducement of the government.8 ' Using thatapproach, one could argue that the distributions were, in a legal sense,non-existent and any further use of that evidence by the governmentfor any purpose would thus deny the effect of the acquittal.8 2 Althoughit would seem that the courts of appeals would be unable to deviatefrom this test, some courts, including the Third Circuit, have devisedways to circumvent or broaden this rule.83 Under the "objective" ap-

sented in the previous acquittal. Id. In both cases, the prosecution's at-tempted proof in the second trial was in direct conflict with the jury's previousdetermination of innocence and clearly involved a relitigation of the guiltissue decided in the first trial. Id.

80. See, e.g., United States v. Larkin, 605 F.2d 1360 (5th Cir. 1979) (lengthyanalysis of the basis of the jury's decision coupled with a discussion ofwhether those findings would be adverse to the government's proof in thesubsequent trial).

81. See W. LAFAvE & A. Scor, supra note 4, at 369. This approach isbased on an implied exception in the statute defining the crime which ex-empts the entrapped person from liability under the statute. Id. The focusis on the character of the defendant. Id. at 371. If it can be determined thatthe defendant had no predisposition to engage in criminal activity, but in-stead, that his conduct was induced by the government, there can be noguilt for the crime in question. Id. at 372. This view of the entrapmentdefense (referred to as the subjective test) has been endorsed as the propertest by the Supreme Court. See Hampton v. United States, 425 U.S. at 484,488 (1976); United States v. Russell, 411 U.S. 423, 434 (1973); Sherman v.United States, 356 U.S. 369, 370-71 (1958); Sorrells v. United States, 287 U.S.435, 442 (1932).

82. See Brief for Appellant at 12-14, United States v. Keller, 624 F.2d 1154(3d Cir. 1980).

83. See United States v. West, 511 F.2d 1083 (3d Cir. 1975) (conviction re-versed on a finding that the role of the government had passed the point oftoleration); United States v. Bueno, 447 F.2d 903 (5th Cir. 1971), cert. denied,411 U.S. 949 (1973) (entrapment established as a matter of law where drugssold by the defendant to a government agent were supplied by a governmentinformant). Cf. United States v. Janotti, 501 F. Supp. 1182 (E.D. Pa. 1980)(convictions reversed on the alternative ground that governmental overreach-ing amounted to a violation of the defendant's due process rights). For adiscussion of the minority, or objective view of entrapment, see note 85 infra.Justice Frankfurter has commented that since the Sorrells case, the lowercourts have often ignored its theory and continue to rest their decisions onthe facts of each case. Sherman v. United States, 356 U.S. 369, 379 (1958)(Frankfurter, J., concurring). See Note, supra note 4, at 197-213; Note,

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proach, which has been endorsed in several concurring and dissentingSupreme Court opinions,8 4 the jury's verdict would be viewed as a con-clusion that there was illegal conduct, but that the defendant could notbe subjected to criminal sanctions due to the entrapment.8 5 Under thisview, the subsequent attempt by the government in Keller to show con-tinuing association with drugs as a method of impeaching credibilitywould not be in conflict with the previous verdict.86

This kind of extended analysis is not forthcoming in the Kelleropinion',87 The holding merely implies that the admission of the undis-puted distributions is a relitigation of the guilt issue resolved by theprior acquittal, but there is no explanation given to support that con-clusion.88 While there is no question that "it is fundamentally unfairand totally incongruous with our basic concepts of justice to permit thesovereign to offer proof that a defendant committed a specific crimewhich a jury of that sovereign has concluded he did not commit," 89 thefacts in Keller may not present that situation. Even if the result in the

Criminal Procedure - Entrapment, 6 WM. 'MITCHELL L. REv. 201, 202-03(1980).

84. See Hampton v. United States, 425 U.S. 484, 495 (1976) (Brennan,J., dissenting); United States v. Russell, 411 U.S. 423, 436 (1973) (Douglas,J., dissenting); Sherman v. United States, 356 U.S. 369, 378 (1958) (Frank.furter, J., concurring); Sorrells v. United States, 287 U.S. 435, 453 (1932)(Roberts, J., concurring).

85. See W. LAFAvE & A. ScoTr, supra note 4. The focus of the objectiveapproach is on the extent of the improper police conduct rather than thedefendant's predisposition. Id. at 371. The entrapped person is "guilty"of the illegal conduct but is not held criminally liable for policy reasons:deterring improper police practices, safeguarding the integrity of the judiciary,and avoiding a strained reading of the criminal statute. Id. at 372. Thereis a somewhat hazy distinction between police conduct which constitutes en-trapment under the objective theory and that which is so offensive that itmerits condemnation as a violation of the defendant's due process rights. SeeUnited States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (reversal based on dueprocess violation rather than entrapment defense). See generally Donnelly,supra note 4; Rotenberg, supra note 4.

86. See Brief for Appellee at 11, United States v. Keller, 624 F.2d 1154(3d Cir. 1980). In failing to consider the issue of whether the facts of theprevious acquittal or the charges therein were being relitigated, the Keller courtignores, rather than refutes, the proposition that the thrust of the cross-examina-tion was nothing more than an attempt to impeach the defendant's testimonyconcerning his motive in the 1977 conspiracy. See text accompanying notes64-67 supra.

87. See notes 61-67 and accompanying text supra. The Keller court sim-ply stated that the previous verdict of acquittal indicated that the requirementsof the criminal law were not satisfied and concluded that admitting the evi.dence would "eviscerate the effect of the prior acquittal." 624 F.2d at 1160.See note 63 supra. The remaining language is devoted to quotes from Win-gate and Mespoulede. 624 F.2d at 1160.


89. Wingate v. Wainwright, 464 F.2d at 215.

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30




present case would be unchanged,90 however, in view of the widespreadacademic criticism of the subjective approach to entrapment,91 the ThirdCircuit's departure from strict adherence to that approach,92 and the in-creasing complexity of the entrapment and due process issues engenderedby more sophisticated investigative techniques, 93 it is submitted that thecourts would do well to employ a more detailed framework of analysisin cases such as Keller involving collateral estoppel of evidence arisingout of entrapment-based acquittals.

As an alternative to the collateral estoppel analysis in this narrowclass of cases, it is suggested that the Federal Rules of Evidence providea better method of review for the type of evidence Keller sought to ex-clude.94 Federal Rule of Evidence 404(b) is generally geared to theadmissibility of other acts, wrongs or crimes whose existence is uncon-tested.9 5 Collateral estoppel, however, excludes evidence of other actsthat is contrary to the overall determination in the previous adjudica-tion.96 In addition, the balancing test of Federal Rule of Evidence 403is aimed at protecting a defendant from the admission of evidence whichwould interfere with a jury's unbiased approach to the defendant's guiltor innocence as regards the particular charge being tried.97 In Keller,the 1978 distributions, although undisputed, might well have been soprejudicial as to preclude their introduction. Consequently, it is sug-gested that, in cases where the challenged evidence springs from an

90. See text accompanying notes 81-86 supra. Since there was no indica-tion that extremely offensive police conduct was a factor in Keller's acquittalfor the 1978 distributions, it could well be presumed that the jury's verdictwas entirely centered on the lack of predisposition and the analysis based onthe subjective theory of entrapment would prevail. See text accompanyingnotes 81-82 supra.

91. See Rossum, The Entrapment Defense and the Supreme Court: OnDefining the Limits of Political Responsibility, 7 MEM. ST. L. REv. 367, 386-87(1977). According to Rossum, the "overwhelming majority of commenta-tors" favor the objective approach in varying degrees, including the AmericanLaw Institute and the authors of the proposed Federal Criminal Code. Id.Out of a survey of 25 law review articles published on entrapment since1950, Rossum found only two that have favored the subjective approach. Id.

92. See United States v. West, 511 F.2d 1083 (3d Cir. 1975).

93. See United States v. Twigg, 588 F.2d 373 (3d Cir. 1978) (governmentsupplied facilities and some of the ingredients for the manufacture of meth-amphetamine); United States v. Janotti, 501 F. Supp. 1182 (E.D. Pa. 1980)(government provided extremely generous financial inducement and appealedto the public official's sense of civic duty).

94. For a discussion of the Federal Rules of Evidence, see notes 45-50and accompanying text supra.

95. See notes 45-47 and accompanying text supra. Evidence of the 1978distributions would, it is suggested, be characterized as "other acts" underFederal Rule of Evidence 404(b).

96. See text accompanying notes 64-67 supra.

97. For the text of Federal Rule of Evidence 403, see note 9 supra.

1980-81]

31




acquittal based on an entrapment defense, the Federal Rules of Evi-dence may provide an analytical framework which is both sounder andmore flexible than the collateral estoppel approach as utilized by theKeller court.

While Keller neither formulates a broader statement of the lawthan does previous authority 98 nor mandates the application of col-lateral estoppel in similar cases as a constitutional matter, 99 the decisiondoes serve to expand the principle of issue preclusion to a type of factpattern quite distinct from that presented in Ashe 100 and prior ThirdCircuit decisions. 101 In following Keller, lower courts may now feelcompelled to use collateral estoppel as a total bar to the use of evidenceof conduct of which a defendant has been acquitted, regardless of thenature of the facts to be precluded. Thus, the decision may well serveto hamper prosecutors' attempts to challenge a defendant's credibility inthese instances to the detriment of the factfinding process.

Anne P. Stark


99. See text accompanying notes 57-58 supra.

100. See text accompanying note 56 supra.


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1980-81]

CRIMINAL LAW - FEDERAL YOUTH CORRECTIONS ACT - A YOUTH

OFFENDER SENTENCED TO A CONSECUTIVE TERM OF LIFE IMPRISON-

MENT WHILE SERVING A PRIOR SENTENCE UNDER THE FEDERAL

YOUTH CORRECTIONS ACT MAY BE CONFINED AMONG THEGENERAL POPULATION OF A FEDERAL CORRECTIONAL

INSTITUTION FOR THE REMAINDER OF HIS PRIOR

SENTENCE.

Thompson v. Carlson (1980)

In 1974, Richard Thompson was convicted in federal court ofassault with intent to commit rape.' Under the provisions of theFederal Youth Corrections Act (YCA or Act),2 he received an eight yearsentence.3 While serving his YCA sentence in the Federal CorrectionalInstitution at Lompoc, California, Thompson was involved in themurder of a fellow inmate.4 His participation led to a conviction forfirst degree murder and Thompson was sentenced to a consecutive adult

1. Thompson v. Carlson, 624 F.2d 415, 416 (3d Cir. 1980). Thompson wasseventeen years old when he was convicted. Id. Thompson was prosecutedin federal court because the assault was committed on a federal reservation.Id.

2. 18 U.S.C. §§5005-5026 (1976). For a discussion of the purpose, pro-visions, and background of the Act, see notes 12-23 and accompanying textinfra.

3. 624 F.2d at 416. This sentence was imposed pursuant to § 5010(c) ofthe YCA which provides:

If the court shall find that the youth offender may not be able toderive maximum benefit from treatment by the Commission prior tothe expiration of six years from the date of conviction it may, in lieuof the penalty of imprisonment otherwise provided by law, sentencethe youth offender to the custody of the Attorney General for treat-ment and supervision pursuant to this chapter for any further periodthat may be authorized by law for the offense or offenses of whichhe stands convicted or until discharged by the Commission as pro-vided in section 5017(d) of this chapter.

18 U.S.C. §5010(c) (1976). For a discussion of other sentencing options,-see note 14 infra.

Thompson was initially committed to the Federal Correctional Institutionat Ashland, Kentucky. 624 F.2d at 416. In 1975, while at the Federal Cor-rectional Institution at Milan, Michigan, he assaulted an inmate and receivedan incident report for threatening a staff member with bodily harm as well asfor assault and disruptive conduct. Id. Thompson was subsequently trans-ferred to the Federal Correctional Institution at El Reno, Oklahoma, for"adjustment purposes" but while there he received still more incident re-ports, including one for making a sharpened weapon. Id. at 416-17. Hewas then transferred to the Federal Correctional Institution at Lompoc,California. Id. at 417. While en route he was involved in a fight with an.other person. Id.

4. 624 F.2d at 416. Thompson's participation consisted of acting as alookout while several other inmates stabbed a fellow prisoner. Id. While

(657)

33




term of life imprisonment.5 Thompson was subsequently transferred tothe United States Penitentiary at Lewisburg, Pennsylvania, where hewas held without being segregated from adult prisoners.8 While con-fined at Lewisburg, Thompson petitioned for a writ of habeus corpus todetermine whether his present confinement complied with the provisionsof the YCA. 7 After a hearing, the magistrate found that Thompson'soriginal sentence under the YCA entitled him to continued segregationfrom adult offenders.8 The magistrate relied largely on the ThirdCircuit's decision in United States ex rel. Dancy v. Arnold.9 Thedistrict court adopted the magistrate's findings, and granted the writof habeas corpus. 10 On appeal, the United States Court of Appeals for

awaiting trial on the murder charge, Thompson assaulted a corrections officerand was sentenced to a one year concurrent jail term. Id. at 417. Followinghis conviction for first degree murder and his subsequent transfer to LewisburgPenitentiary, Thompson was involved in yet another assault on a staff mem-ber, threatened another staff member with bodily harm, and incited otherinmates to riot. Id.

5. Id. at 416. The trial judge made a specific finding that Thompsonwould not derive benefit from further treatment under the special provisionsof the YCA. Id.

6. Id. at 417.

7. Id. At Lewisburg, Thompson was assigned to the general prison popu-lation. Id. He claimed that because he still had time to serve under hisYCA sentence, he was entitled to be segregated from adult offenders. Id.Thompson relied on § 5011 of the Act which provides in pertinent part: "Inso far as practical , . . . institutions and agencies [designated by the Directorof the Bureau of Prisons] shall be used only for treatment of committed youthoffenders, and such youth offenders shall be segregated from other offenders[not sentenced under the terms of the Act]." 18 U.S.C. § 5011 (1976).

8. 624 F.2d at 417. Although the magistrate agreed with Thompson'scontention that he was entitled by law to continued segregation, he noted inhis report that it was his opinion that Thompson would not benefit fromfurther confinement under the terms of the YCA. Id. He based this con-clusion on Thompson's violent and disruptive behavior while imprisonedand on the inevitability of Thompson's future confinement under a regularadult sentence. Id.

For an account of Thompson's conduct while imprisoned, see note 3supra. The magistrate also pointed out that Thompson could be a disruptiveinfluence on those youth offenders who have been responsive to YCA treat-ment if he was confined with them. 624 F.2d at 417.

9. 572 F.2d 107 (3d Cir. 1978), noted in The Third Circuit Review, 24VILL. L. REv. 285 (1979). For a discussion of Dancy, see notes 19-23 and ac-companying text infra.

10. 624 F.2d at 417. The district court also interpreted the Dancy deci-sion as mandating that an individual, who is sentenced to a consecutive adultterm while serving a YCA sentence, be incarcerated in a YCA facility untilthe expiration of the YCA sentence. Id. The district court observed thatThompson's difficulties as a prisoner could be effectively handled pursuantto §5011 of the YCA which not only provides for the segregation of youthoffenders sentenced under the Act from adult offenders, but also allows forthe segregation of classes of committed youth offenders according to their needsfor treatment. Id., citing 18 U.S.C. §5011 (1976). For the text of §5011, seenote 20 infra.

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the Third Circuit 11 reversed, holding that a prisoner who is given aconsecutive sentence of life imprisonment as an adult offender while heis serving a YCA sentence need not serve the remainder of the YCAsentence at a special YCA facility, but may be returned to the generalprison population. Thompson v. Carlson, 624 F.2d 415 (3d Cir. 1980).

The YCA, enacted in 1950,12 was designed to "substitute forretributive punishment methods of training and treatment designed tocorrect and prevent anti-social tendencies of youth offenders," 13 and toprovide federal judges with a system of sentencing that will "promotethe rehabilitation of those who in the opinion of the sentencing judgeshow promise of becoming useful citizens, and so will avoid the de-generative and needless transformation of many of these young peopleinto habitual criminals." 14 The United States Supreme Court hasviewed the Act in a similar manner.15 In Dorszynski v. United States,16

the Court noted that the YCA was designed "to provide a better methodfor treating young offenders convicted in federal courts in that vulner-

11. The case was heard by Judges Adams, Rosenn and Sloviter. JudgeSloviter wrote the opinion for the majority, in which Judge Rosenn joined.Judge Adams dissented in a separate opinion.

12. Federal Youth Corrections Act of 1950, ch. 1115, §2, 64 Stat. 1085(1950) (codified at 18 U.S.C. §§ 5005-5026 (1976)).

13. See H.R. REP. No. 2979, 81st Cong., 2d Sess. 2, reprinted in [1950]U.S. CODE CONG. SERV. 3983, 3985. The YCA originated in a report by asubcommittee of the Judicial Conference of the United States which foundthat criminal tendencies were formed between the ages of 16 and 23. SeeNote, supra note 9, at 287, citing H.R. REP. No. 2979, 81st Cong., 2d Sess.2, reprinted in [1950] U.S. CODE CONG. SERV. 3983, 3984.

14. H.R. REP. No. 2979, 81st Cong., 2d Sess. 2, reprinted in [1950] U.S.CODE CONG. SERV. 3983, 3983. The courts are in agreement that this is themajor purpose of the YCA. See, e.g., Dorszynski v. United States, 418 U.S.424, 433 (1974); United States ex rel Dancy v. Arnold, 572 F.2d at 111; Aber-nathy v. United States, 418 F.2d 288, 290 (5th Cir. 1969); Brown v. Carlson,431 F. Supp. 755, 765 (W.D. Wis. 1977). The system contemplated by Con-gress was modeled after the English Borstal System. See note 48 infra. Ifthe sentencing judge is of the opinion that it is unnecessary to commit theyouth, the youth may be placed on probation. 18 U.S.C. § 5010(a) (1976). Ifsome form of confinement is deemed necessary, the court may, in lieu of thepenalty otherwise provided by law, sentence the youth offender to the custodyof the Attorney General for treatment and supervision pursuant to the Actfor not more than four years, or until discharged by the United States ParoleCommission. 18 U.S.C. §§5010(b), 5017(c) (1976). If the court determinesthat the youth offender may not be able to derive maximum benefit fromtreatment by the United States Parole Commission prior to the expiration ofsix years from the date of conviction, it may sentence the offender for anyfurther period authorized by law for the offense in question, or until dis-charged, as provided in §5017(d), by the United States Parole Commission.18 U.S.C. §§ 5010(c), 5017(c) (1976). See 18 U.S.C. § 5017(d) (1976). If, how-ever, the sentencing judge makes an express finding that the youth offenderwould not derive benefit from treatment under §§5010(b) or 5010(c), hemay then sentence the offender under any other applicable penalty provision.18 U.S.C. § 5010(d) (1976).

15. See Note, supra note 9, at 288-89.16. 418 U.S. 424 (1974).

1980-81]

35




able age bracket [16-22], to rehabilitate them and restore normal be-havior patterns .... The objective of these [sentencing] options repre-sented a departure from traditional sentencing, and focused primarilyon correction and rehabilitation." 17 The Supreme Court further ob-served that "an integral part of the treatment program was the segrega-tion of the committed persons, insofar as practicable, so as to placethem with those similarly committed, to avoid the influence of asso-ciation with the more hardened inmates serving traditional criminalsentences." 18

In United States ex rel. Dancy v. Arnold,1 the Third Circuit ex-amined section 5011 of the YCA, which describes the institutionaltreatment to which YCA offenders can be committed.2 0 The issue inDancy was whether youth offenders sentenced under the YCA must besegregated from adult prisoners in an institution which provides YCAfacilities and treatment.21 Relying on the propositions that the pur-pose of the Act is the rehabilitation of youth offenders and that the non-segregation of youth and adult offenders is inconsistent with thisrehabilitative purpose, 22 the Dancy court concluded that the confine-ment of a youth offender in the general population of a federalpenitentiary conflicted with the statutory scheme and congressionalintent.2

3

17. Note, supra note 9, at 288-89, quoting Dorszynski v. United States,418 U.S. at 433.

18. 418 U.S. at 433.19. 572 F.2d 107 (3d Cir. 1978).20. 18 U.S.C. § 5011 (1976). Section 5011 of the Act provides:Committed youth offenders not conditionally released shall undergotreatment in institutions of maximum security, medium security, orminimum security types, including training schools, hospitals, farms,forestry and other camps, and other agencies that will provide the es-sential varieties of treatment. The Director shall from time to timedesignate, set aside, and adopt institutions and agencies under thecontrol of the Department of Justice for treatment. In so far aspracticable, such institutions and agencies shall be used only fortreatment of committed youth offenders, and such offenders shall besegregated from other offenders, and classes of committed youth of-fenders shall be segregated according to their needs for treatment.

Id. For a discussion of the legislative history of the YCA, see Note, supranote 9, at 287-88.

21. 572 F.2d at 108.22. Id. at 112. For a discussion of the purpose of the Act, see note 14

and accompanying text supra.23. 572 F.2d at 113. The Dancy court interpreted the phrase "in so far

as practical" in §5011, to mean that the youths sentenced under the YCA areto receive treatment at institutions of the types enumerated in §5011, andthat "in so far as practical, these institutions should be used only for thatpurpose." Id. at 109. For the text of § 5011, see note 20 supra. The Dancycourt further stated, "[i]n any event, however, youths committed under theYCA must be segregated from other offenders even if it is impractical to place

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36




In deciding Thompson, the Third Circuit relied largely on thelanguage of the YCA, its legislative history, and a tradition of judicialdiscretion in sentencing.24 The court did not rely on Dancy and, infact, took pains to distinguish Thompson from Dancy.25 It did so bynoting that the construction of the YCA given in Dancy was based on afact pattern in which the youth offender would be released followingcompletion of his YCA sentence. 26 The court reasoned that segregationof a youth offender who was to be released after his YCA sentence madesense in view of the Act's aim of protecting youth offenders fromhardened criminals, but that there was no comparable need for seg-regation if the offender was to serve a consecutive life sentence uponcompletion of his YCA term.27

Having thus disposed of Dancy as controlling precedent, the courtin Thompson began its analysis by noting that the purpose of the Actis the rehabilitation of the youth offender.28 The court observed that

them in institutions used solely for the treatment of youth offenders." 572F.2d at 109.

A majority of federal courts which have considered this issue have reacheda contrary result, maintaining that a youth sentenced under the Act couldbe confined in places lacking separate YCA treatment facilities. See, e.g.,Abernathy v. United States, 418 F.2d 288, 289 (5th Cir. 1969) (Attorney Gen-eral is empowered to designate the place of confinement of any federal prisonerpursuant to § 4082(a) and (b) of the Criminal Code; discretion is not limitedby the terms of the YCA. See 18 U.S.C. § 4082(a), (b) (1976)); Barr v. UnitedStates, 415 F. Supp. 990, 996 (W.D. Okla. 1976); Foote v. United States, 306F. Supp. 627, 628 (D. Nev. 1969); United States v. Reef, 268 F. Supp. 1015,1017 (D. Colo. 1967) (dictum).

24. 624 F.2d at 420-22. The Third Circuit noted that not only was thisa case of first impression, but also that the issue presented by the fact situationhad not been within the contemplation of Congress when it enacted the YCA.Id. The Third Circuit defined its task as one of filling in the "interstices"of the statute. Id.

25. Id. at 420.26. Id. Conrad Dancy had been convicted of first degree felony murder

and of carrying a pistol without a license and was sentenced to 20 years im-prisonment pursuant to 18 U.S.C. § 5010(c) (1976). 572 F.2d at 108-09. Fora discussion of the sentencing procedure under § 5010(c), see note 14 supra.

The Thompson court recognized that the Tenth Circuit had previouslyheld that a statutory or constitutional conflict does not arise when a subse-quent adult sentence is imposed on a youth offender currently serving a YCAsentence. Id. at 421, citing Roddy v. United States, 509 F.2d 1145, 1147 (10thCir. 1975); Nast v. United States, 415 F.2d 338, 340 (10th Cir. 1969). It ob-served, however, that these cases had preceded its own decision in Dancy andtherefore did not consider the effect of the second sentence on the terms andconditions of confinement under the original YCA sentence. 624 F.2c[ at 421.For a discussion of Dancy, see notes 19-23 and accompanying text infra.

27. 624 F.2d at 420. The Thompson court noted that "the Act was de-signed to spare youth offenders the corruptive influence of prison life andassociation with adult criminals." Id., quoting United States ex rel. Dancyv. Arnold, 572 F.2d at 112 (emphasis by the Thompson court).

28. 624 F.2d at 420. See note 14 supra. Congress had been concernedthat a great number of youths imprisoned in penal institutions develop anti-social conduct and become hardened criminals. 624 F.2d at 420. The con-gressional history indicates that the Act was designed for those who "show

1980-81]

37




section 5023 of the Act provides for recognition of rehabilitation byallowing a judge to reevaluate a YCA sentence and to suspend thesentence by placing a youth offender on probation.29

The Thompson court conceded that the facts of the case differedfrom the scheme contemplated under section 5023 of the Act in thatThompson's YCA sentence was being reconsidered, not to determineif he was rehabilitated adequately to be paroled, but to determinewhether he would derive any benefit from further confinement underthe YCA or whether he should spend the remainder of his YCAsentence in an adult prisoner population. 0 It concluded that thisdistinction was not critical and that "it would not be inconsistent withthe statutory scheme to hold that a judicial reevaluaion of the continuedbenefit of commitment as a YCA offender is permissible when such areevaluation is triggered by the offender's own commission of acrime." 31 The Thompson court found that in the case before it, thesecond sentencing judge had undertaken such a reevaluation and thathis determination that Thompson could not benefit from the provisionsof the Act and would therefore serve his second sentence as an adultprisoner was also a finding that continued YCA treatment under theoriginal sentence would no longer be beneficial.32 Thus, Thompsoncould be transferred to an adult prison for the remainder of his originalsentence.

3

In his dissenting opinion, Judge Adams asserted that the con-struction of the YCA in Dancy is controlling and requires youthoffenders serving a YCA sentence to be segregated from adult offendersat all times.8 4 Judge Adams noted that there is "no statutory basis forpermitting a second sentencing judge to reevaluate the continued ben-efit to a youth offender of treatment under a YCA sentence previously

promise of becoming useful citizens." Id., quoting H.R. REP. No. 2979, 81stCong., 2d Sess. 1, reprinted in [1950] U.S. CODE CONG. SERV. 3983, 3983.

29. 624 F.2d at 421. Section 5023(a) of the YCA provides:Nothing in this chapter shall limit or affect the power of any

court to suspend the imposition or execution of any sentence and placea youth offender on probation or be construed in any way to amend,repeal or effect the provisions of chapter 231 of this title or the Actof June 25, 1910 (ch. 433, 36 Stat. 864), as amended (ch. 1, title 24,of the D. of C. Code), both relative to probation,

18 U.S.C. § 5023(a) (1976).30. 624 F.2d at 421-22.31. Id. According to the Thompson court, the second sentencing judge

must determine whether the prisoner can benefit from treatment under theYCA. Id. at 421. This determination would be made in light of the prisoner'srecord during his confinement under the original YCA sentence and the natureof the subsequent offense. Id.

32. Id. at 422.33. Id.34. Id. at 423 (Adams, J., dissenting). For a discussion of Dancy, see notes

19-23 and accompanying text supra.

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imposed by a different trial judge for an entirely separate offense." 85In support of his position, Judge Adams stated that Congress, in enact-ing "the most comprehensive federal statute concerned with sentencing"would have provided for this type of reconsideration of YCA sentenceshad it so intended.3 6

Judge Adams then pointed out that without any supportinglanguage in the Act, the majority's conclusion is contrary to traditionalsentencing doctrine.37 Citing the Supreme Court's opinion inDorszynski 8 Judge Adams noted that it was the intent of Congress toplace the sentencing function exclusively in the trial court and that it isa longstanding rule that no court may review a sentence imposed by atrial court so long as that sentence is within the statute and does notviolate the United States Constitution.89

Upon review of the Thompson opinion, it is submitted that itsconstruction of the YCA to allow "judicial reevaluation" is at onceunsupported by the language of the Act and contrary to both traditional

35. 624 F.2d at 425 (Adams, J., dissenting). Judge Adams asserted thatthe majority's reliance on § 5023 as support for their judicial reevaluation isill-founded. Id. at 425-26 (Adams, J., dissenting). See notes 29-31 and ac-companying text supra. He stated that § 5023 "simply makes clear that theYCA was not meant to limit or affect any already existing power of a courtregarding suspended sentences and probation," and does not touch the issueof whether a second judge may reevaluate the continued benefit of furtherconfinement under the Act or in any way change the nature of that treatment.624 F.2d at 426 (Adams, J., dissenting). Judge Adams concluded that themajority's construction of the Act is without statutory support and that theproposed "judicial reevaluation" is at best not specifically prohibited by theYCA. Id.

Judge Adams also attacked the majority's finding that the second sentenc-ing judge held that Thompson would not benefit from further YCA treatmentunder his original sentence. Id. at 425 (Adams, J., dissenting). See text ac-companying note 32 supra. Citing the sentencing order, judge Adams pointedout that it contains no direct reference to Thompson's current YCA sentenceand, although it is reasonable to assume that the second sentencing judge knewthat Thompson was then serving a YCA sentence, it is likely that his attentionwas focused on whether Thompson would benefit from a second YCA sen-tence. 624 F.2d at 425 (Adams, J., dissenting).

36. 624 F.2d at 426 (Adams, J., dissenting), quoting Dorszynski v. UnitedStates, 418 U.S. at 432.

37. 624 F.2d at 426 (Adams, J., dissenting).38. The issue addressed by the Court in Dorszynski was the conditions

under which a trial judge could sentence a youth to an adult sentence underthe YCA. 418 U.S. at 425. The Supreme Court held that §5010(d) of theYCA required an express "no benefit" finding by the trial judge before hecould sentence a youth, otherwise eligible for a YCA sentence, to an adultsentence. Id. at 443-44. See 18 U.S.C. § 5010(d) (1976).

39. 624 F.2d at 426 (Adams, J., dissenting), citing Dorszynski v. UnitedStates, 418 U.S. at 440-41. Further, the Supreme Court has stated that the"Act was meant to enlarge, not restrict, the sentencing options of fed-eral trial courts in order to . . . promote the rehabilitation of [youthoffenders] who in the opinion of the sentencing judge, show promiseof becoming useful citizens." 624 F.2d at 426-27 (Adams, J., dissenting),quoting Dorszynski v. United States, 418 U.S. at 436 (emphasis added by JudgeAdams).

1980-811

39




sentencing doctrine and the intent of Congress. 40 The parallel whichthe majority draws between reevaluating a sentence to place a youth,committed under the Act, on probation and the reevaluation whichallows Thompson to be placed in an adult penitentiary, though initiallyappealing, is not to be found in the provisions of the YCA.41 Further,the decision reached in Thompson is at odds with the Supreme Court'sdecision in Dorszynski, which stated that "[t]he intent of Congress [inenacting the YCA] was in accord with long-established authority in theUnited States vesting the sentencing function exclusively in the trialcourt." 42 It is firmly established in criminal practice that this sentencemay not be reviewed by another court unless it is outside of the statute.43

The holding is also at odds with the congressional intent which was to"promote the rehabilitation of [youth offenders] who in the opinion ofthe sentencing judge, show promise of becoming useful citizens ...., 44

Although unsupported by the traditional tools of statutory con-struction,4 5 it is submitted that the decision in Thompson may none-theless succeed in furthering the purpose of the YCA. ConsideringThompson's poor behavior while incarcerated in youth facilities, 46 itcan be argued that he has already shown that he is not receptive toYCA treatment and it would be futile to continue such treatment.It is not unreasonable to suggest that had Congress contemplated thissituation, it would have provided a procedure by which a YCA offendercould be removed from YCA facilities. 47

40. See notes 29-31 and accompanying text supra.41. See note 35 and accompanying text supra. This interpretation of the

YCA would be more accurately designated as a "judicially fashioned amend-ment" to the Act. 624 F.2d at 423 (Adams, J., dissenting).

42. 418 U.S. at 440.43. See note 39 and accompanying text supra.44. H.R. REP. No. 2979, 81st Cong., 2d Sess. 1, reprinted in [1950] U.S.

CODE CONG. SERV. at 3983.45. See notes 41-44 and accompanying text supra.46. See notes 3-4 and accompanying text supra.47. See 624 F.2d at 420. It was apparently not within the contemplation

of Congress that YCA treatment could be unsuccessful or that a youth, duringhis YCA sentence, might commit a crime so severe that he would be requiredto serve a subsequent sentence in an adult penitentiary. Id. Noting that thepurpose of the Act is rehabilitation, and that to this end treatment must be-gin "before the traits of the habitual criminal are allowed to develop," H.R.REP. No. 2979, 81st Cong., 2d Sess. 1, reprinted in [1950] U.S. CODE CONG.SERV. at 3983, it is submitted that Thompson has evidenced these traitsand that further YCA treatment would be useless and costly. Many personsotherwise disposed toward enacting the YCA were concerned with the in-creased expenditures which would be required to implement it, and thereforewere hesitant to pass it. Id. at 7, reprinted in [1950] U.S. CODE CONG. SERV.at 3990. See 96 CONG. REc. 1283 (1950). It is suggested that the expressedconcern over costs is further support for the proposition that if Congress hadconsidered whether a person in Thompson's position should be accorded furtherYCA treatment, it would have enacted a provision similar to § 5023 whichwould allow "judicial reevaluation" to determine whether this person might

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It is difficult to determine, however, quite how far Congress in-tended to go in modeling the YCA on the English Borstal System.4 8

There is a strong indication that the English Borstal System encounteredyouths who were not receptive to its programs.4 9 Instead of transferringthem to adult institutions, the Borstal system provided special programswhich would better accommodate their needs so that rehabilitationmight better be effectuated. 0 If Congress intended to adopt theBorstal System with as few changes as possible, then the Third Circuit'sdecision runs counter to that intent.51

Though Thompson is destined to serve a consecutive adult sentence,he is still at an age when "special factors operate to produce habitualcriminals." 52 Concededly, the imposition of a consecutive adult sen-tence on a youth offender may lessen the rehabilitative potentialafforded by a YCA facility,53 but it is possible that a youth who com-pletes his original sentence in a YCA facility would be "less susceptibleto the influence of hardened criminals during his subsequent confine-ment than one not so treated." 64 It would, therefore, be consistent withthe purpose of the YCA and its legislative history to conclude thatThompson should remain in a YCA facility so that he may continue toreceive treatment which will help rehabilitate him so that he maysomeday become a useful member of society.55

benefit from further YCA treatment. See notes 29-31 8c 35 and accompanyingtext supra.

48. See H.R. REP. No. 2979, 81st Cong., 2d Sess. 4-7, reprinted in [1950)U.S. CODE CONG. SERV. 3983, 3985-3989. The system contemplated by Congresswas modeled after the English Borstal system, begun at the end of the 19thcentury, in which youthful offenders were segregated from adult offenders andspecial rehabilitative programs were established for them. Id. at 4, reprintedin [1950] U.S. CODE CONG. SERV. at 3987. The three principles dominatingthe Borstal system are: (1) flexibility, (2) individualization, and (3) emphasison intangibles. Id. In 1950, it contained 13 institutions, each with its ownspecialty. Id. The system was flexible, monitoring the youth's conduct andallowing transfer between the institutions so that the treatment accorded theyouth was best suited to his peculiar problems. Id. at 5-6, reprinted in [1950]U.S. CODE CONG. SERV. at 3987-88. Section 5011 of the YCA expressly incor-porates many of these aspects of the Borstal system as it provides for thesegregation of youth offenders according to their needs for treatment. 18U.S.C. § 5011 (1976). See notes 10 &c 20 supra.

49. H.R. REP. No. 2979, 81st Cong., 2d Sess. 6, reprinted in [1950] U.S.CODE CONG. SE-V. 3983, 3988.

50. Id.51. See notes 48-50 and accompanying text supra.52. Dorszynski v. United States, 418 U.S. at 432-33. See note I supra.53. See Nast v. United States, 415 F.2d 338, 340 (10th Cir. 1969) (consecu.

tive character of sentence imposed under Escape Act upon person who hadbeen committed under the YCA did not offend YCA provisions). See note 5supra.

54. 624 F.2d at 428 (Adams, J., dissenting).55. See notes 48-52 and accompanying text supra.

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In conclusion, the Thompson court has indicated that the decisionreached is limited to the facts of the case. 56 Still, the Third Circuit inThompson has evidenced a more conservative interpretation of the Actand it may be inferred from the opinion that the Dancy holding, man-dating segregation of youth offenders, 57 will be subject to furtherexceptions in the future. The support upon which the court bases itsholding indicates that this issue is one which is in need of congressionalguidance. 58 The Tenth Circuit in Nast v. United States 59 expressedthese same sentiments when it stated that "ft]he problem raised byappellant is for such legislative consideration as it might enlist, ratherthan one to be solved as appellant presses upon this court." 60 It ishoped that such guidance will be forthcoming.

Peter D. Holbrook

56. 624 F.2d at 419.57. For a discussion of Dancy, see notes 19-23 and accompanying text

supra.58. See notes 28-33 and accompanying text supra.59. 415 F.2d 338 (10th Cir. 1969).60. Id. at 340.

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